Public Trustee v O'Donnell - [2008] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
PUBLIC TRUSTEE v O'DONNELL
[2008] SASC 181
Judgment of The Honourable Justice Gray
4 July 2008
EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY - PETITION OR SUMMONS FOR ADVICE - JURISDICTION AND IN GENERAL
EQUITY - TRUSTS AND TRUSTEES - POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES - PURCHASE OR LEASE OF TRUST PROPERTY - GENERAL PRINCIPLES
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION GENERALLY
Application by Public Trustee for directions pursuant to section 69, Administration and Probate Act 1919 (SA) – deceased died intestate – spouse of the deceased, also the administrator of the intestate estate elected to acquire “interest” in matrimonial dwellinghouse pursuant to section 72L of Administration and Probate Act – dwellinghouse situate on an 175.6-hectare perpetual Crown lease – whether election valid – specifically, whether relevant “interest” included Crown lease or alternatively an interest in a more limited area of land referable to the dwellinghouse and “curtilage” – consideration of terms of lease – consideration of expert valuation reports – consideration of Kangaroo Island Development plan – consideration of relevant principles of statutory interpretation – consideration of legislative scheme of Part 3A of Administration and Probate Act – consideration of extrinsic materials – consideration of in pari materia legislation – consideration of nature and scope of directions power – consideration of the court’s equitable and statutory power to authorise advantageous dealings in trust property – consideration of meaning of terms “interest” and “curtilage”.
Held: (1) The expression "interest in a dwellinghouse" in section 72L is a reference to an interest in the land title on which the dwellinghouse stands - the relevant "interest" in the present case is the interest of the deceased in the perpetual Crown lease - as a consequence the widow's election pursuant to section 72L is valid.
(2) (Obiter) The question of what constitutes the relevant "curtilage" of a dwellinghouse within the meaning of section 72L, is a question of fact and degree and is guided by two considerations (i) what land subserves the purposes of the building (ii) what land actually or supposedly contributes to the enjoyment of the building - there must be some reasonable limitation to the scope of curtilage - on the facts of this case the curtilage is confined to 40 hectares of land surrounding the dwellinghouse.
Acts Interpretation Act 1915 (SA) s 22(1); Administration Act 1903 (WA) s 1(4), s 2(b), Fourth Schedule; Administration and Probate Act 1891 (SA) s 99; Administration and Probate Act 1919 (SA) s 4, s 46, s 49, s 69, s 72A, s 72B, s 72G, s 72H, s 72I, s 72J, s 72K, s 72L, s 72M, s 72N and s 720; Administration and Probate Act 1929 (ACT) s 49F - s 49N; Administration and Probate Act (NT) s 72 - s 79; Administration and Probate Act 1958 (Vic) s 37A; Administration and Probate Act Amendment Act (No.2) 1975 (SA); Administration of Estates Act 1925 (UK) s 41 and s 45; Commercial Arbitration Act 1985 (WA); Crown Lands Development Act 1929 (SA) s 212; Crown Lands Development Act 1943 (SA) s 6; Inheritance (Family Provision) Act 1972 (SA); Intestates’ Estates Act 1952 (UK) Sch 2, cl 5; Law Property Amendment Act 1859 (UK); Minors Contracts (Miscellaneous) Provisions Act 1979 (SA); Probate and Administration Act 1898 (NSW) s 3(2)(b), s 61A(2), s 61D, Fourth Schedule; Public Trustee Act 1880 (SA) s 28; Statutes Amendment and Repeal (Crown Lands) Act 1985 (SA); Succession Act 1981 (Qld) s 34B, s 39A – s 39D; The Property Act of 1860 (SA) s 25; Trustee Act 1898 (Tas) s 12 and s 47; Trustee Act (NT) s 10A and s 50A; Trustee Act 1925 (ACT) s 14E and s 81; Trustee Act 1925 (NSW) s 14DA and s 81; Trustee Act 1936 (SA) s 4(1), s 4(2) and s 49; Trustee Act 1958 (Vic) s 11 and s 63; Trustees Act 1962 (WA) s 24 and s 89; Trusts Act 1973 (Qld) s 28 and s 94; War Service Land Settlement Agreement Act 1945 (SA), referred to.
Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436; Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700; Billing v Pill [1954] 1 QB 70; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft [1975] AC 591; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; Bropho v Western Australia (1990) 171 CLR 1; Burch v South Australia (1998) 71 SASR 12; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Douglas v Tickner (1994) 49 FCR 507; Dyer v Dorset County Council [1989] 1 QB 347; Fothergill v Monarch Airlines Ltd [1981] AC 251; Gardner v R (2003) 39 MVR 308; Hallen v Runder (1834) 149 ER 1080; Hawkins v The Minister for Lands for New South Wales (1949) 78 CLR 479; Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637; IW v City of Perth (1996) 191 CLR 1; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Marshall v Smith (1907) 4 CLR 1617; May v Ceedive Pty Ltd [2006] NSWCA 369; Melville Homes Pty Ltd v Prime Ceramics Services Pty Ltd [1991] 2 VR 211; Metheun-Campbell v Walters [1979] 1 QB 525; Mills v Meeking (1990) 169 CLR 214; Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Mullane v Mullane (1982) 158 CLR 436; Ory and Ory v Betamore Pty Ltd (1990) 54 SASR 331; Owen v South Australia (1996) 66 SASR 251; Palgo Holdings v Gowans (2005) 221 CLR 249; Patros v Patros (2007) 16 VR 182; Pepper v Hart [1993] AC 593; Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Qantas Airways Ltd v Christie (1998) 193 CLR 280; R (Daly) v Home Secretary [2001] 2 AC 532; R v Berchet (1688) 1 Show KB 106; R v Brown [1996] AC 543; R v Di Maria And Others (1996) 67 SASR 466; Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674; Re Magarey Farlam Lawyers (No 2) (2006) 96 SASR 323; Re McComb [1993] 3 VR 485; Re Morrison, Jones & Taylor Ltd [1914] 1 Ch 50; Re Skinner (1988) Q ConvR 54-300; Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327; Reid v Smith (1905) 3 CLR 656; Royal Sydney Golf Club v Federal Commissioner of Taxation (1954) 91 CLR 610; Sherritt Gordon Mines Ltd v FCT [1977] VR 342; Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Region [2001] QB 59; State of New South Wales v Amery (2006) 230 CLR 174; The Commonwealth v Baume (1905) 2 CLR 405; Thomas v Mowbray (2007) 237 ALR 194; Wacando v The Commonwealth (1981) 148 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1; Wilson v Anderson (2002) 213 CLR 401, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"interest", "dwellinghouse", "curtilage"

PUBLIC TRUSTEE v O'DONNELL
[2008] SASC 181
Testamentary Causes Jurisdiction
GRAY J

This is an application, brought by the Public Trustee, for advice and direction.
Naomi O’Donnell, the spouse of the deceased and the administrator of his intestate estate, wishes to purchase from the estate the property on which she and her late husband lived. The deceased died at a young age, leaving his widow and two infant children. A difficulty has arisen because the dwellinghouse in which the family lived was situated on a 175.6-hectare perpetual lease. Mrs O’Donnell, as administrator, has elected to purchase the property pursuant to section 72L of the Administration and Probate Act 1919 (SA). The question to be determined is whether Mrs O’Donnell’s election is valid. The determination of this question turns on the proper construction of section 72L of the Administration and Probate Act.
Although the application only raises for consideration the construction of section 72L, a proper resolution of this issue involves a discussion of alternative ways in which Mrs O’Donnell might acquire the property if her election is not valid. I will return to discuss these matters later in these reasons.
At the hearing of the application affidavits were tendered by the parties by consent. There was no application to cross-examine any of the deponents. I have drawn on those affidavits and exhibits in making findings in these reasons. Where I have referred to the affidavits or any exhibits, it is to be understood that I am accepting and acting on that material.
Introduction
The deceased, Daniel O’Donnell late of Gosse Ritchie Road via Parndarna Road, Kangaroo Island, died on 9 November 2003, aged 38 years. The cause of death, the subject of coronial inquest, was determined to be the result of salt water drowning.[1] The deceased died in heroic circumstances while trying to rescue a tourist who had been swept into the water at Remarkable Rocks at Flinders Chase National Park, Kangaroo Island.
[1] See State Coroner, Finding of Inquest into the Deaths of Dougal Smart and Daniel O’Donnell, Inquest Number 21/2006 (3260/03 & 3261/03), 10 August 2006.
The deceased is survived by his wife Mrs O’Donnell and two infant children, Liam, born on 24 November 1999, and Sarah, born on 29 December 2000. The deceased died intestate. Letters of administration of the estate were granted to Mrs O’Donnell on 29 November 2006.
It appears from the statement of assets and liabilities filed with the application for letters of administration that the net value of the estate is $85,489.08. The statement of assets and liabilities also reveals that at the date of the deceased’s death, the deceased held two real property interests as follows:
-An estate in fee simple of one undivided second part in the whole of the land Comprised Certificate of Title Register Book Volume 5876 Folio 561 situate at Allotment 194 Vivonne Bay Kangaroo Island; and
-An estate in leasehold under and By virtue of Crown Lease War Service (Personal Residence) Lease No. 602 Register Book Volume 1324 Folio 31 situate at Section 25 Hundred of Ritchie Kangaroo Island (“the Hundred of Ritchie property”).
It is the Hundred of Ritchie property which is the subject of dispute in the within proceedings. Until his death, the deceased resided with Mrs O’Donnell and their two children in a dwellinghouse on this property (“the dwellinghouse”).
On 26 February 2007, Mrs O’Donnell elected to purchase the Hundred of Ritchie property, pursuant to section 72L of the Administration and Probate Act (“the election”). On 30 August 2007 the Public Trustee did not accept the election. The reasons for the non-acceptance of the election will be discussed later in these reasons.
On 20 September 2007, Mrs O’Donnell proposed a compromise offer to purchase 40 hectares of the relevant property (“the 40 hectare allotment”) as valued at the deceased’s date of death and to acquire the remaining acreage of the relevant property at the then current value.
On 8 November 2007, the Public Trustee brought this application to the Supreme Court for advice and direction concerning the election, pursuant to section 69 of the Administration and Probate Act.[2]
[2] Section 69 of the Administration and Probate Act 1919 (SA) provides:
“(1)The Public Trustee shall, and any trustee, executor, or administrator may, when in difficulty or doubt, apply to a Judge for advice or direction as to matters connected with the administration of any estate, or the construction of any will, deed, or document.
(2)Such application may be made either without notice to or upon summons served upon any of the parties interested.
(3)Any person interested in any estate, who is dissatisfied with the conduct of the Public Trustee in any matter connected with the management or administration thereof, may apply to a Judge by summons to be served upon the Public Trustee to review such conduct.
(4)A Judge may, upon the hearing of an application under this section, make any order, declaratory or otherwise, that he sees fit as to the administration of the estate, or the construction of the will, deed, or document, which is the subject of the application, and also as to the costs of the application.
(5)Any such order made in the absence of an interested party shall have the same effect, or be of the same force or validity, so far as regards protection to the Public Trustee, or other trustee, or the executor, or administrator, as if the same had been a decree or order made in an action where all parties concerned were represented.
(6)The Judge may refer any question of law arising on an application under this section for the opinion of the Supreme Court, or may direct an issue to be tried by, or an action to be instituted in, the Supreme Court.”
The nature and scope of the dispute concerning Mrs O’Donnell’s election is outlined in the affidavit of Elizabeth Jean Watson, sworn 7 November 2007, which was admitted into evidence. It relevantly provides:
Difficulty or doubt has arisen in relation to [Mrs O’Donnell] election and Public Trustee seeks the advice and direction of a Judge of this Honourable Court. The dwellinghouse in which the deceased and [Mrs O’Donnell] resided is comprised in Crown Lease War Service Perpetual (Personal Residence) No.602 Volume 1324 Folio 31. The total area of the land comprised in the house is 175.6 hectares. … The valuation as at the date of [the deceased’s] death is $205,000.
Public Trustee is in difficulty and doubt as to whether a 175.6 hectare leasehold property on which there is a house comprises a “dwellinghouse” within the definition of the Administration and Probate Act and whether either the whole or part of such a land holding can be the “curtilage” of a dwellinghouse and therefore whether election over the whole is permissible.
Valuations have been obtained to compare subdivision valuations. The dwellinghouse can be surrounded by a minimum 40.4 hectare land holding which would comprise the dwellinghouse, a shearing shed (which was used by the deceased as backpacker facilities in connection with his business operation) and miscellaneous sheds. The valuation of the potential subdivision as at the date of death is $140,000. … The balance of the land (which has no improvements) is $100,000.
Public Trustee seeks the direction of this Honourable Court as to whether [Mrs O’Donnell’s] election should proceed in respect of:
The whole of the lease; or
40.4 hectares of the lease subject to subdivision consent; or
whether there can be no election.
The Crown Lease
As earlier observed, the tenure of the Hundred of Ritchie property is a War Service Perpetual (Personal Residence) Lease, being Crown Lease War Service Perpetual (Personal Residence) Lease No. 602 Register Book Volume 1324 Folio 31, issued under the Crown Lands Development Act 1943 (SA),[3] and War Service Land Settlement Agreement Act 1945 (SA).
[3] The Crown Lands Development Act, was repealed by the Statutes Amendment and Repeal (Crown Lands) Act 1985 (SA) on 15 July 1985. A provision equivalent to section 6 is found in section 212 of the Crown Lands Development Act 1929 (SA).
Section 6 of the Crown Lands Development Act provides that a lessee may purchase the fee simple of the leased land as follows:
(1)A lessee holding land under a lease granted pursuant to this Act may apply in writing to surrender his lease and purchase the fee simple of the land.
(2)Upon an application being made under this section the Land Board shall fix the sum at which the fee simple of the land may be purchased and the Minister shall give notice thereof in writing to the applicant. The said sum shall not be less than the unimproved value of the land at the time when the land was first allocated under this Act, plus the costs to the Minister of all work done and improvements effected upon him by the land.
(3)The applicant shall within three months after the giving of notice under subsection (2) of this section notify the Minister whether he accepts or refuses the terms offered. If he accepts and if within one month after the Minister receives notice of his acceptance he surrenders his lease and pays the purchase money and all proper fees he shall be entitled to receive a land grant for the land: Provided that the Minister may extend any time prescribed by this subsection.
(4)A lessee shall not be entitled to purchase any land under this section until after the expiration of ten years from the time when that land was originally leased to him or to his predecessor in title, nor unless the Minister is satisfied either that all conditions of the lease have been fulfilled or that strict compliance with the conditions of the lease should be dispensed with.
A review of the provisions of the Crown lease discloses that the deceased’s interest as a lessee included a right to exclusive possession and quiet enjoyment of the property, including the improvements on the property. The deceased also had an option to purchase the fee simple of the land demised, subject inter alia to:
-The performance by the lessee of the covenants contained in the lease, including a covenant to pay rent, typical land management covenants[4] and a covenant not to transfer any part of the land without the written consent of the Minister of Lands; and
-The right of the Crown to resume the lands for any public work or purposes.
The deceased’s interest as lessee under the Crown lease is part of his intestate estate.
[4] For discussion of the usual terms in the Crown leases, see Hawkins v The Minister for Lands for New South Wales (1949) 78 CLR 479; Wilson v Anderson (2002) 213 CLR 401.
Relevant provisions of the Crown Lease are as follows. Clause 2(XVI) provided that ministerial consent was required for any transfer of the leasehold:
And the Lessee shall not –
Transfer assign sublet encumber or mortgage the land or any part thereof without the written consent of the Minister first had in each case and such consent may be given upon and subject to such terms and conditions as the Minister determines. The Minister may in his absolute discretion refuse to grant consent upon any ground he thinks fit.
Clause 6 addressed surrender:
The Lessee may at any time surrender this lease upon and subject to such terms and conditions as the Minister determines.
Clause 9(V) provided that the lessee may purchase the fee simple of the leased land:
The Lessee may at any time during the currency of the lease apply to purchase the land and the improvements aforesaid at the price fixed by the Minister but the Minister will not consent to the purchase within a period of ten years from the date of the commencement of this lease unless in the absolute discretion of the Minister there are special circumstances justifying consent’s being given before the expiry of the said ten years nor unless the terms covenants and conditions of the lease have been fully observed and performed to the satisfaction of the Minister at all times.
The Hundred of Ritchie Property
The Hundred of Ritchie property was subject to expert valuation. A valuation report, dated 3 February 2007, and which assessed the market value of the property, was annexed to the affidavit of Mrs O’Donnell sworn 14 February 2008. The history of the tenure of the Hundred of Ritchie property was explained in the valuation report as follows:
The subject property was originally part of a Soldier Settler War service Leasehold farm of some 606.ha (1499 acres) with the lease being issued in 1960. However ownership changed hands in 1967, again in 1971 thence family held until 2000 with a portion sold off in a Land Division with a further portion sold off in 2001 prior to Mr O’Donnell purchasing the remaining 175.6ha in March 2001.
The location of the Hundred of Ritchie property, description of the land and the details of fixed improvements were also outlined:
LOCATION
Situate some 77km west of the township of Kingscote which township is the largest urban centre on Kangaroo Island involving retail and commercial enterprises along with the Public Offices and Community facilities.
Access being via sealed South Coast Road highway apart from the last 2km of graded gravelled main district arterial Gosse Ritchie roadway fronting the subject property.
Vivonne Bay general store with fuel outlet, 17km distant, nearest township being Parndarna 40km distant. Cygnet River airport 62km distant whilst vehicular/passenger/freight ferries to the mainland ply from the port of Penneshaw some 105km distant.
The subject property centrally located to access the popular tourism attractions of Seal Bay, Kelly Hills Caves and Flinders Chase National Park to name a few.
Services include Electricity, Telstra and twice-weekly roadside mail delivery.
Zoning General Farming under LGA Kangaroo Island Council consolidated development plan 14^th December 2006.
…
DESCRIPTION OF COUNTRY
The subject property comprises a total area of some 175.6ha (434 acres) gently undulating to hilly country with soils varying ironstone to sandy loam over clay.
Estimated from aerial map 124.4ha cleared and pastured (apart from isolated shade and shelter belts) of which mostly arable.
Pastures principally sub clover varieties regularly fertilized during cropping operations.
Remaining 51.2ha comprises established native timbers including variety of gums, stringy bark and mallee with larger trees along the timbered watercourses practically bordering the north easterly corner which includes the NE tributary of the Stunsail Boom river.
FENCING
The subject property has road frontages along both of the southerly and north/south boundaries with fencing principally pine posts, 3 spacers and seven plain wires of recent construction. However boundary fencing to the northerly portion of the property remains original L.D.E. scrub posts, iron droppers and plain wire generally overgrown and in very poor condition.
The property is subdivided into some 7 paddocks with internal fencing generally in good condition.
WATER
6 good dams, one equipped with 4 post steel tower windmill. 2 other dams winter holding only. Water to each paddock.
FIXED IMPROVEMENTS
Believed to be late 1950’s construction timber framed asbestos typical L.D.E. homestead since renovated and extended. Now pseudo brick cladding galvanized iron roofing, timber flooring, composite material linings with possibility of some asbestos content. 134m² disposed as 4 bedrooms kitchen/dining, large lounge with Nectre fuel burning heater, some timber wall panelling. 2 bathrooms, gas stove, electric HW service, semi detached laundry.
Generally very basic facilities with cladding showing age, cracking along with some damaged panels. Internally in need of maintenance and painting.
Rainwater tank supply now from 1 poly ground tank to header tank whilst garden and toilet water from house dam supply. Steel framed garage in derelict condition. House yard netting fenced.
OUTBUILDINGS
·Ancient Armco steel framed shed 18.5 x 6 with lean to and engine house, earth floor in state of disrepair.
·Old set timber and mesh sheep yards with race spray dip, in disrepair.
·Open fronted steel framed cement floor galvanized iron implement shed 9 x 6 in good condition.
·Open sided skillion galvanized iron roof tubular uprights hay shed concrete floor 15.3 x 6.8 in disrepair.
·Open fronted timber framed, earth floor skillion galvanized iron roof 18.5 x 8 in poor condition throughout.
·Timber framed galvanised shearing shed 18.0 x 14.8 of recent construction now converted into backpacker hostel. Approved Development No. 520-D552-03.
·2003 Constructed timber framed galvanized iron clad skillion roof 11.3 x 5. Ablutions block watered from aged roofed concrete tank, seeping.
The market value of the Hundred of Ritchie property together with improvements was assessed at $205,000.
The 40 Hectare Allotment

An expert valuation has also been obtained for the 40 hectare allotment, being the minimum allotment area within a plan of division under the 7 August 2003, 14 August 2006 and 1 November 2007 consolidations of the Kangaroo Island Council Development Plan. The valuation report of 6 September 2007, which assessed the market value of the 40 hectare allotment, was annexed to the earlier referred to affidavit of Ms Watson.
The location of the 40 hectare allotment, description of the land and the details of fixed improvements were described in the valuation report as follows:
DESCRIPTION OF COUNTRY
Proposed 40.4ha comprising 38ha cleared and pastured and 2.4ha standing scrub. 3 dams (1 equipped) and subdivided into 3 main paddocks plus holding areas around dam and fixed improvements.
Fixed improvements include dwelling after renovations, back packers hostel, ablutions block, implement shed and miscellaneous sheds as detailed in the February dated Valuation aforesaid.
The market value of the 40 hectare allotment, together with improvements, was assessed as being $100,000.
The Kangaroo Island Development Plan
As earlier observed, pursuant to the 7 August 2003, 14 August 2006 and 1 November 2007 consolidations of the Kangaroo Island Council Development Plan, the minimum allotment area within a plan of division is 40 hectares. The 1 November 2007 consolidation relevantly provides as follows:
Land Division
…
The minimum allotment area within a plan of division should be 40 hectares.
Land division should only be undertaken in a manner which minimises the impacts on natural resources and does not compromise use of the land by future generations.
It is to be noted however, that at the time of the publication of the 1 November 2007 consolidation, the Kangaroo Island Council also issued a draft General Development Plan Amendment for public consultation. Paragraph 4.3 of the draft provides that existing General Farming Zone will be converted to the Primary Production Zone as part of the Better Development Plan process.[5] In particular, it provides that the minimum allotment size will be increased to 100 hectares:
[5] Clause 2 of the draft explains the Better Development Plan as follows: “The BDP program has been prepared by Planning SA in order to provide consistency between Development Plans across the State and implement best practice standards. … As a result the BDP process proposes significant amendments to Council’s Development Plan both in the naming of Zones but also in the qualitative and quantitative provisions contained within the Development Plan.”
The proposed amendments to the Development Plan detailed in the Plan Amendment section … are summarised as follows:
…
4.3 Zoning
General Farming
The existing General Farming Zone will be converted to the Primary Production Zone as part of the BDP conversion. The Primary Production Zone includes significant local additions to ensure the subdivision of primary production land is for primary production purposes.
The minimum allotment size will increase to 100 hectares in order to prevent the fragmentation of primary production and that has been occurring over recent times on the Island. Such fragmentation of land has significant consequences on Kangaroo Island’s agricultural economy and rural character.
The negative consequences of fragmentation are outlined in the Kangaroo Island Council Better Development Plan (BDP) Conversion PAR Statement of investigation also released on 1 November 2007:
4.3.1 General Farming
The Kangaroo Island Council is experiencing significant development pressure from applications seeking to subdivide General Farming allotments into the minimum area of 40 hectares.
This type of land fragmentation is undermining the intent of the zone which is to promote and support general farming/primary production activities on Kangaroo Island.
Other significant issues arising from the fragmentation of general farming land include:-
·loss of viable farming land and the subsequent detrimental economic and social impacts;
·conflicts between incompatible land uses between rural living and general farming activities;
·reduction in the scenic qualities of the Island which contribute to its’ tourism potential;
·impacts from bushfire may potentially be increased as a result of damage to life and property;
·infrastructure becomes more fragmented and inefficient.
…
The minimum allotment size or non-complying standard has been increased from 40 hectares to 100 hectares in an effort to reduce inappropriate land fragmentation and to reflect an allotment size which is more viable for primary production.
It is also relevant to observe that as recorded in the valuation reports of 3 February 2007 and 6 September 2007, any subdivision of the Hundred of Ritchie property would first require a conversion of the property from leasehold to freehold.[6] As at 3 February 2007, the fixed cost of the conversion was $7531.00 together with approximately $985.00 in fees and charges. In addition, there would be the expense of ancillary matters including surveying, planning and registration costs.
[6] See Crown Lands Development Act 1943 (SA), section 6.
The Directions Sought
At the hearing of the application, Public Trustee, in its written submission, articulated with more particularity the nature and scope of the directions and advice sought:
Questions for Consideration
First, is the interest over which Ms O’Donnell is entitled to exercise her right of election over:
a.     the Crown Lease, War Service Perpetual No.602; or
b.     an interest in a more limited area of land referable to the dwellinghouse and                   curtilage.
Secondly, if the answer is b., is the dwellinghouse and curtilage comprised of:
a.     the 40 ha block more particularly described in the letter dated 20 September 2007 from Tindall Gask Bentley to the Public Trustee (Exhibit “NO8”) and which is currently the subject of a subdivision proposal; [or]
b.     some other area.
I consider that this approach is appropriate. I will refer to the first question as the “interest question” and the second question as the “curtilage question”. Counsel for Public Trustee submitted that a consideration of the alternative curtilage question was only necessary if the answer to the interest question was that the right of election was limited.
Preliminary Observations
The Court’s Power to Give Directions
The scope of the Court’s power to give directions to those administering the affairs of others was fully canvassed by McClelland J in Re GB Nathan and Co Pty Ltd (in liq),[7] and more recently by Debelle J in Re Magarey Farlam Lawyers Trust Accounts (No 2).[8] With respect I adopt the summary of the relevant principles as set out in those decisions. With assistance from those decisions, I make the following observations relevant to the within proceedings.
[7] Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 677-679.
[8] Re Magarey Farlam Lawyers (No 2) (2006) 96 SASR 323 at [20]-[30].
The modern statutory procedure for application for directions by a trustee, executor or administrator, has a pedigree in the United Kingdom. The practice of the English Court of Chancery under the general law extended to giving directions to those entrusted with the administration of property under the control of the Court.[9] The two main classes of such persons were, firstly, trustees of trust property, or executors or administrators of a deceased estate, under administration by the Court pursuant to a decree for general administration and, secondly, receivers (and managers) appointed by the Court in respect of property the subject of litigation. This practice was subsequently legislatively recognised in 1859, through the enactment of section 30 of the Law Property Amendment Act 1859 (UK) (22 and 23 Vict. c 35). Section 30 gave liberty to a trustee, executor or administrator to apply to the Court for opinion, advice or direction on any question respecting the management or administration of the trust, property, or the assets of any testator or intestate.
[9] Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 677.
In 1860, section 30 of the United Kingdom Act was adopted and enacted in South Australia by section 25 of The Property Act of 1860 (SA), which was almost in identical terms to section 30. In 1880, the ability to obtain the advice and direction of this Court was extended to Public Trustee by section 28 of the Public Trustee Act 1880 (SA).
In 1891, section 99 of the Administration and Probate Act 1891 (SA) was enacted, giving liberty to the Public Trustee and any trustee, executor or administrator to apply to a judge for advice or direction as to matters connected with the administration of any estate and the construction of any will, deed or document. Section 99 of the 1891 Act was the immediate predecessor to section 69 of the Administration and Probate Act1919 (which consolidated and repealed the 1891 Act), and was identical in terms to section 69, save that section 69 is now set out in six subsections which correspond to the four subsections in section 99 of the 1891 Act.
The directions procedure provides protection to an official administrator, be they a trustee or receiver appointed by the Court, but it does not, as a general rule, enable the determination of substantive rights as between parties.[10] In the context of section 69 of the Administration and Probate Act, the following observation of Debelle J in Re Magarey Farlam Lawyers Trust Accounts (No 2)[11] is pertinent:
So, where a trustee of the estate of a deceased person applies pursuant to s 69 of the Administration of Probate Act 1919 for the advice or the directions of the Court, those directions protect and indemnify the trustee against any claim for breach of trust, provided always that the facts have been fully and fairly disclosed but it leaves the question open as between beneficiaries who have not been cited in the proceedings: Re Mallen; Executor, Trustee & Agency Co of South Australia Ltd v Wooldridge [1929] SASR 154 at 157; In Estate of Hunter [1957] SASR 194 at 196. Where it is desirable or necessary to obtain a final determination of the rights of parties, it is necessary to proceed inter partes: Estate of Hunter (ibid).
[10] Re Magarey Farlam Lawyers (No 2) (2006) 96 SASR 323 at [27].
[11] Re Magarey Farlam Lawyers (No 2) (2006) 96 SASR 323 at [27].
As was noted, however, by McClelland J in Re GB Nathan & Co Pty Ltd (in liq),[12] the Court’s procedures are sufficiently flexible to enable directions proceedings to be changed into substantive proceedings in certain circumstances:
The procedures of the court are sufficiently flexible to enable proceedings commenced as an application for directions to be changed into proceedings for the determination of substantive rights, and this is sometimes a convenient course in order to avoid the need to commence further proceedings involving additional cost and delay: see, eg, Anmi Pty Ltd v Williams[1981] 2 NSWLR 138 at 156-157. However it is important that the distinction between the two kinds of proceedings be not lost sight of or blurred, and such a fundamental change should not be permitted unless the court is satisfied that those affected either consent to that course (see, eg, Re Standard Insurance Co Pty Ltd (1963) 5 FLR 292; 80 WN (NSW) 1355 and Murdoch [[1986] VR 97] (at 100-101)), or will not suffer injustice in consequence of the alteration to the status of the proceedings.
[12] Re GB Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 680. See also Re Magarey Farlam Lawyers (No 2) (2006) 96 SASR 323 at [28].
Exception to Rule that Trustee May Not Purchase Trust Property
Section 72L of the Administration and Probate Act operates as a statutory exception to the general rule that a trustee may not purchase trust property.
The ability of a trustee of an estate to purchase trust property developed in equity, in part, as a recognition of the fairness in allowing a surviving spouse as administrator to purchase from the estate the matrimonial home.[13] This practice was subsequently incorporated by legislation. These developments were discussed by Cavanough J in Patros v Patros.[14]
[13] Patros v Patros (2007) 16 VR 182 at [13]-[14].
[14] Patros v Patros (2007) 16 VR 182 at [13]-[14].
In Patros, approval was sought for the proposed sale of the intestate’s family home to his surviving spouse who was also one of the administrators and trustees of the intestate’s estate. Cavanough J discussed the position in equity and observed:[15]
[15] Patros v Patros (2007) 16 VR 182 at [13]-[14].
Even outside the statutory provisions in question, it now seems that the principles of equity themselves are not so inflexible as to deny significance for present purposes to the need to preserve a family home for a widow and her children. In Clay v Clay [(2001) 202 CLR 410] the High Court held that Mrs Clay, a widow, did not act in breach of her fiduciary duties as guardian of her children in acquiring, by private sale, a house property from the estate of her late husband to provide a home for herself and the children. Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ said [at [46]-[47]]:
... It is a truism that the scope of her fiduciary duty was, to adopt the words of Mason J, to be “moulded according to the nature of the relationship and the facts of the case”. His Honour also observed that, in some cases “the so-called rule that the fiduciary cannot allow a conflict to arise between duty and interest … cannot be usefully applied in the absolute terms in which it has been stated”.
Further, it is as well here to bear in mind the statement by Deane J in Chan v Zacharia as follows:
“[O]ne cannot but be conscious of the danger that the over-enthusiastic and unnecessary statement of broad general principles of equity in terms of inflexibility may destroy the vigour which it is intended to promote in that it will exclude the ordinary interplay of the doctrines of equity and the adjustment of general principles to particular facts and changing circumstances and convert equity into an instrument of hardship and injustice in individual cases. There is ‘no better mode of undermining the sound doctrines of equity than to make unreasonable and inequitable applications of them’”. [citation omitted]
Later on their Honours said [at 56]:
However, the better view is that there is no sensible real or substantial possibility of conflict in the necessary sense. Indeed, the Full Court itself, in an earlier passage in its reasons, pointed to the determinative considerations. The Full Court [Clay v Clay (1999) 20 WAR 427 at 458] said:
A number of factors in the circumstances of this case could provide reason for viewing the conduct of Mrs Clay as not involving a breach of the duty she owed as guardian. She dealt with the trustee who had a power of sale, not with her wards. She did not deal in property of her wards. She dealt in good faith. She paid market value and no loss accrued to the estate. The acquisition was not in breach of any duty she owed with respect to the property acquired. She was guardian by virtue of her capacity as sole surviving natural and step-parent of the wards, a very particular type of fiduciary role albeit that it may have some of the indicia of a trust role. She may be seen to be acting at once in her [wards’] interest and her own by providing a home for her wards as well as herself, especially as Queenslea Drive offered particular emotional support for her wards, as well as herself, which would be lost to all of them if she did not acquire it.
[Emphasis in original]
His Honour also discussed the operation of section 63 of the Trustee Act1958 (Vic)[16] which gives the Court power to authorise dealings in trust property:[17]
Generally speaking, it is a rule of equity that a trustee may not purchase trust property. The rule follows from the broad principle that a conflict of interest and duty will not be tolerated. However there are recognised exceptions to the rule. A trustee may be authorised to buy the trust property either by the trust instrument, or by statute, or by the beneficiaries themselves if they are sui juris. In addition, a trustee may purchase trust property if the trustee obtains the consent of a competent court. The permission may be sought where beneficiaries are unable to consent, for example because they are unborn or are infants; or the permission may be sought where beneficiaries who are sui juris do not consent. This Court has the power to authorise a purchase of trust property by a trustee by virtue of the Court’s inherent jurisdiction in matters relating to trusts. I consider that the requisite power is now also conferred by s 63 of the Trustee Act 1958, or, at the very least, by the combined operation of s 63 and s 63A of the Trustee Act 1958. Section 63A has particular application in the case of beneficiaries who are unable to give a valid consent themselves. In such cases, the Court must be satisfied that the proposed arrangement would be for the “benefit” of the beneficiaries in question.
[16] Section 63 of the Trustee Act1958 (Vic) provides:
(1)Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, is in the opinion of the Court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument (if any) or by law, the Court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose on such terms and subject to such provisions and conditions (if any) as the Court thinks fit and may direct in what manner any money authorized to be expended, and the costs of any transaction are to be paid or borne as between capital and income.
(2)The Court may from time to time rescind or vary any order made under this section, or may make any new or further order.
(3)An application to the Court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.
[17] Patros v Patros (2007) 16 VR 182 at [5] (footnotes omitted).
It is relevant to record the position in South Australia as set out in section 49 of the Trustee Act 1936 (SA):
(1)     The Supreme Court, on the application of—
(a)     a trustee; or
(b)     the Public Trustee; or
(c)     any beneficiary interested in the trust property with respect to which the application is made; or
(d)     a next friend on behalf of any such beneficiary who is not sui juris,
and on being satisfied, by such evidence as the said court deems sufficient, that it will be advantageous to the beneficiaries, may authorise a sale of that property, or any part thereof, by the trustee to himself, or to himself and any other person, for his or their own use and benefit, notwithstanding that the property so to be sold has not been offered for sale by public auction or otherwise: Provided that the power conferred by this section shall not be exercised contrary to any express prohibition contained in the instrument whereby the trust was created.
(2)The Supreme Court may require that notice be given of an application under subsection (1) to any person who has, in the opinion of the Court, a proper interest in the matter (but an order may be made, if the Court thinks fit, although no notice has been given of the application).
Section 4(1) defines “representative”, “trust” and “trustee” to mean as follows:
(1)     In this Act (except in Part 5), unless the context otherwise requires—
…
“representative” means an executor or administrator, and includes the Public Trustee in cases where the Supreme Court has authorised him to administer the estate of a deceased person;
…
“trust” does not include the duties incident to an estate conveyed by way of mortgage, or to the estate or interest of a mortgagee under the Real Property Act 1886 but with these exceptions the expressions trust and trustee include implied and constructive trusts, and cases where the trustee has a beneficial interest in the trust property, and the duties incident to the office of representative of a deceased person, and the expression “trustee” includes a representative of a deceased person;
Section 4(2) extends the operation of the Trustee Act to land for the purposes of the Act:
(2)Notwithstanding the Real Property Act 1886 this Act applies to land which is subject to that Act, but only to the extent necessary for carrying out the purposes of this Act.

In Patros,[18] Cavanough J also considered the application of section 37A of the Administration and Probate Act 1958 (Vic) – an analogue to section 72L – and observed:
I note that [the surviving spouse] would have been able to take advantage of the election to purchase conferred by s 37A of the Administration and Probate Act except for the expiry of the three months time limit in that section, which was due to circumstances beyond her control relating to the finalisation of the value of her husband’s estate. It is unnecessary for me to investigate whether there are uniform statutory provisions throughout Australia to the same effect as s 37A (or, for that matter, uniform provisions to the same effect as s 63 or s 63A of the Trustee Act) such as might justify the view that the general principles of equity should be modified to conform with the statutory policy: compare Esso Australia Resources v Commissioner of Taxation. Even if I could not legitimately have regard to s 37A, I would, in any event arrive at the same overall conclusion.
[18] Patros v Patros (2007) 16 VR 182 at [16] (footnotes omitted).
It should further be observed that section 49 of the Trustee Act and equivalent provisions in other State and Territory legislation[19] provide a general discretion of the Court to allow a trustee to purchase trust property. In addition, section 12 of the Trustee Act and equivalent provisions in other State and Territory legislation[20] expressly empower a trustee to purchase a dwellinghouse for a beneficiary to use as a residence:
[19] Trustee Act 1925 (ACT), section 81; Trustee Act 1925 (NSW), section 81; Trustee Act (NT), section 50A; Trusts Act 1973 (Qld), section 94; Trustee Act 1898 (Tas) section 47; Trustee Act 1958 (Vic), section 63; Trusts Act 1962 (WA), section 89.
[20] Trustee Act 1925 (ACT), section 14E; Trustee Act 1925 (NSW), section 14DA; Trustee Act (NT), section 10A; Trusts Act 1973 (Qld), section 28; Trustee Act 1898 (Tas), section 12; Trustee Act 1958 (Vic), section 11; Trustees Act 1962 (WA), section 24.
(1)     Subject to the instrument creating the trust, a trustee may—
(a)     purchase a dwelling house for a beneficiary to use as a residence; or
(b)     enter into any other agreement or arrangement to secure for a beneficiary a right to use a dwelling house as a residence.
(2)Despite the terms of the instrument creating the trust, a trustee may, if to do so would not unfairly prejudice the interests of other beneficiaries, retain as part of the trust property a dwelling house for a beneficiary to use as a residence.
(3) A dwelling house purchased, retained or otherwise secured for use by the beneficiary as a residence may be made available to the beneficiary for that purpose on such terms and conditions consistent with the trust and the extent of the beneficiary's interest as the trustee thinks fit.
(4)The trustee may retain a dwelling house or any interest or rights in respect of a dwelling house acquired under this section after the use of the dwelling house by the beneficiary has ceased.
(5)     In this section—
dwelling house includes—
(a)   any building or part of a building designed, or converted or capable of being converted, for use as a residence; and
(b)   any amenities or facilities for use in association with the use of a dwelling house.
It will be recalled that by section 4(1) of the Trustee Act, a “trustee” includes a “representative of a deceased person” and a “represenative” means an executor or administrator and includes the Public Trustee.
An “Interest” in Property
It is recognised that in its ordinary and natural usage, the term “interest” in the context of property has a proprietary connotation. No one who has a merely personal right in relation to property can be said to have an “interest” in that property.[21] In Mullane v Mullane[22] the High Court observed:
An interest in property is a right of a proprietary nature, not a mere personal right: Stow v Mineral Holdings (Aust) Pty Ltd [(1977) 51 ALJR 672 at 679]; Re Toohey; Ex parte Meneling Station Pty Ltd [(1982) 44 ALR 63].
In the present proceedings, the proprietary interest in the dwellinghouse formed part of a leasehold interest.
[21] Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 342 (Mason J).
[22] Mullane v Mullane (1982) 158 CLR 436 at 445 (Mason ACJ, Wilson, Brennan, Deane and Dawson JJ).
A building cannot ordinarily be divorced from the land upon which it is situated. As a general rule, a dwellinghouse affixed to land is conventionally treated as a fixture,[23] because it is intended to be a permanent part of the land.[24] In Billing v Pill, Lord Goddard CJ, with whom Sellers and Havers JJ agreed, observed:[25]
What is a fixture? The commonest fixture is a house which is built into the land, so that in law it is regarded as part of the land. The house and the land are one thing.
In an oft-quoted passage, Jordan CJ stated the prima facie position as follows:[26]
A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose. If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is: Holland v Hodgson [(L.R. 7 C.P. 328 at 355)].
[23] Reid v Smith (1905) 3 CLR 656; May v Ceedive Pty Ltd [2006] NSWCA 369.
[24] Peter Butt, Land Law, (5^th ed, 2006) at [312].
[25] Billing v Pill [1954] 1 QB 70 at 75.
[26] Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712.
Where an interest is created in the title to a fixture, that interest is also an interest in the land to which that fixture is attached.[27] The common law maxim, quicquid plantatur solo, solo cedit – “whatever is affixed to the soil becomes part of the soil” – applies. This is recognised in section 49 of the Administration and Probate Act, which provides that for the purpose of section 46 (which concerns the vesting of land, following the death of the owner, in the executor or administrator of the estate), “land” means and includes:
… messuages,[28] lands, tenements, rents, and hereditaments, whether corporeal or incorporeal and any share, estate, and interest in them, or any of them, whether the same is a freehold or chattel interest; and any possibility, right, or title of entry or action, whether the same is in possession, reversion, remainder, or contingency;
[27] Hallen v Runder (1834) 149 ER 1080; Re Morrison, Jones & Taylor Ltd [1914] 1 Ch 50 at 61; Re Skinner (1988) Q ConvR ¶54-300.
[28] “Messuage” means not only a house itself but the outbuildings, courtyard, garden and adjacent land used and occupied with it: Royal Sydney Golf Club v Federal Commissioner of Taxation (1954) 91 CLR 610 at 625.
Legislative Scheme
Part 3A (sections 72A-72O) of the Administration and Probate Act concerns distribution on intestacy.
Section 72A is a transitional provision which provides that Part 3A only applies in respect of the estate of a person who dies wholly or partially intestate after the commencement of the Administration and Probate Act Amendment Act (No. 2) 1975 (SA).
Section 72G outlines the general distribution of an intestate estate and relevantly provides:
Subject to this Part, an intestate estate shall be distributed according to the following rules:
…
(b) where the intestate is survived by a spouse or domestic partner and by issue—
(i) the spouse or domestic partner is entitled—
(A)if the value of the intestate estate does not exceed $10 000, to the whole of the intestate estate; or
(B)if the value of the intestate estate exceeds $10 000, to the sum of $10 000 and to one-half of the balance of the intestate estate; and
(ii)the issue of the intestate is entitled to the balance (if any) of the intestate estate;
…
Sections 72H, 72I and 72J outline in greater detail the division of an intestate estate amongst the deceased’s spouse or domestic partner, issue and relatives. Section 72K modifies the rules of hotchpot. It provides that certain gifts made by a deceased person are to be regarded as having been given in full or partial satisfaction of the share to which a beneficiary is entitled on an intestacy.
Section 72L provides for the election by the deceased’s spouse or domestic partner to take an interest in a dwellinghouse in which the spouse or domestic partner of the deceased was residing at the date of the deceased’s death:
(1)Subject to this Part, where the intestate estate of an intestate who is survived by a spouse or domestic partner includes an interest in a dwellinghouse in which the spouse or domestic partner of the intestate was residing at the date of the intestate's death, the spouse or domestic partner may elect to acquire that interest at its value as at the date of the death of the intestate.
(2)     An election under this section must be made—
(a)     where the spouse or domestic partner is an administrator of the intestate estate—within three months after the date on which administration of the intestate estate was granted by the Court; or
(b)     where the spouse or domestic partner is not an administrator of the intestate estate—within three months after the administrator serves a notice personally or by post upon him requiring him to make an election under this section,
or within such extended period as the Court may allow.
(3)     An election by a spouse or domestic partner shall be furnished in writing—
(a)     if the spouse or domestic partner is not an administrator of the intestate estate—to the administrator; or
(b)     if the spouse or domestic partner is an administrator of the intestate estate—to the Public Trustee.
(4)Where a spouse or domestic partner elects, pursuant to the provisions of this section, to acquire an interest in a dwellinghouse—
(a)     the amount to which he is entitled out of the intestate estate shall be reduced by the value of that interest; and
(b)     if the value of that interest exceeds the amount to which the spouse or domestic partner is entitled out of the intestate estate, the spouse or domestic partner shall, upon making the election, pay into the intestate estate the difference between that value and the value of his interest in the intestate estate.
(5)Where the spouse or domestic partner of an intestate is an administrator of the intestate estate, he may, notwithstanding that he is a trustee, acquire in pursuance of this section an interest in a dwellinghouse that forms part of the intestate estate.
Section 72B is an interpretative provision. Of relevance to the within proceedings are the following definitions:
Dwellinghouse includes -
(a)     a part of a building occupied as a separate dwelling; or
(b)     the curtilage of a dwellinghouse;
…
intestate estate in relation to an intestate means –
(a)in the case of an intestate who leaves a will – that part of his estate that is not effectively disposed of by the will;
(b)     in any other case the whole of his estate.
By section 4 of the Act, “estate” is defined to comprise both realty and personalty. It is relevant to note that the definition of ‘dwellinghouse’ is prima facie inclusive, not exhaustive.[29]
[29] See DC Pearce and KS Geddes, Statutory Interpretation in Australia (6th ed, 2006) at 6.56 citing Sherritt Gordon Mines Ltd v FCT [1977] VR 342 at 353; Douglas v Tickner (1994) 49 FCR 507 at 519; Gardner v R (2003) 39 MVR 308 at [5] (Sheller JA), at [47] (O’Keefe J).
Section 72M restricts the right of the administrator of an intestate estate to sell an interest in the dwellinghouse:
(1)Where a spouse or domestic partner of an intestate was, at the date of death of the intestate residing in a dwellinghouse, and an interest in that dwellinghouse forms part of the intestate estate—
(a) the spouse or domestic partner shall be entitled to continue to reside in the dwellinghouse—
(i)until the expiration of the period within which he is entitled under this Act to elect to acquire the dwellinghouse; or
(ii)where a person has by virtue of a mortgage or charge the right to enter into possession of the dwellinghouse or to dispose of the interest, until that right is exercised,
whichever first occurs; and
(b) the administrator of the intestate estate shall not dispose of the interest unless—
(i)the dwellinghouse has ceased to be the ordinary place of residence of the spouse or domestic partner; or
(ii)the period within which the spouse or domestic partner is entitled under this Act to elect to acquire the dwellinghouse has elapsed.
Section 72N provides that Part 3A does not affect the operation of the Inheritance (Family Provision) Act 1972 (SA), in respect of an intestate estate. Section 72O provides that certain Imperial Acts which formerly regulated distribution of intestate estates shall cease to operate.
Part 3A was enacted into the Administration and Probate Act by the Administration and Probate Act Amendment Act (No.2) 1975 (SA), with effect from 29 January 1976. It was described as “a new code dealing with intestate succession”.[30] The purpose of the Amendment Act was to give effect to recommendations of the 28^th Report of the Law Reform Committee of South Australia to the Attorney-General Relating to the Reform of the Law on Intestacy and Wills (“the Law Reform Report”), to remove certain anomalies in the law of intestate succession and to provide a complete statement of the law of intestate succession.[31]
[30] South Australia, Parliamentary Debates, House of Assembly, 28 October 1975, 1471 (The Hon Peter Duncan, Attorney-General).
[31] South Australia, Parliamentary Debates, House of Assembly, 28 October 1975, 1470 (The Hon Peter Duncan, Attorney-General).
The operation of sections 72L and 72M was outlined in the second reading speech as follows:[32]
New section [72L] provides that the spouse of an intestate estate is to have the option of acquiring the home that constituted their matrimonial home on the date of death of the intestate. New section [72M] enables the spouse to continue to reside in the matrimonial home until the time for exercising the option expires.
The circumstance of an election by a deceased’s spouse to acquire the matrimonial home was also discussed in the Law Reform Report:
In the Australian Capital Territory and in England the surviving spouse may elect to acquire the matrimonial home at valuation in satisfaction or part satisfaction of his or her interest. This would seem to us to be a beneficial provision and indeed we would go further. We think that the family house and the furniture and furnishings ordinarily used in that house at the time of the death of the deceased should be available to the surviving spouse for acquisition in satisfaction or part satisfaction or his or her interest at the value they bear at the date of acquisition.
[Emphasis added]
[32] South Australia, Parliamentary Debates, House of Assembly, 28 October 1975, 1471 (The Hon Peter Duncan, Attorney-General).
The statutory rights of a surviving spouse to a deceased’s estate have their progenitor in United Kingdom common law and statute. The common law doctrines of curtesy and dower provided special lifetime rights to the widow and widower respectively in relation to their deceased spouse’s real estate.[33] The Administration of Estates Act 1925 (UK) repealed the common law doctrines of curtesy and dower and gave primacy to the surviving spouse, ending the difference between widows and widowers as to entitlement.[34] Section 41 of this Act gave the personal representative of a deceased person the general power to appropriate any part of the real or personal estate of the deceased in or toward satisfaction of any legacy bequeathed by the deceased or of any interest or share in his property as may seem just and reasonable according to the respective rights of the persons interested in the property of the deceased.[35]
[33] For a discussion of the doctrines of curtesy and dower see Marshall v Smith (1907) 4 CLR 1617. The doctrines of curtesy and dower have become irrelevant in light of the modern rights on intestacy of the surviving spouse or partner, and have been statutorily abolished in all States: see “Issue Paper 26 – Uniform Succession Laws: Intestacy” (2005) New South Wales Law Reform Commission, [15.19]-[15.24].
[34] Administration of Estates Act 1925 (UK), section 45.
[35] Administration of Estates Act 1925 (UK), section 41.
In 1953, the enactment of the Intestates’ Estates Act 1952 (UK) gave the surviving spouse of an intestate deceased the right to require the personal representatives to exercise their power of appropriation in respect of the matrimonial home in or toward the satisfaction of their interest in the estate.[36]
[36] Intestates’ Estates Act 1952 (UK), clause 5 and Schedule 2.
Schedule 2 to the Intestates’ Estates Act relevantly provided:
Rights of Surviving Spouse as respects the Matrimonial Home
1.(1)     Subject to the provisions of this Schedule, where the residuary estate of the intestate comprises an interest in a dwelling-house in which the surviving husband or wife was resident at the time of the intestate’s death, the surviving husband or wife may require the personal representative, in exercise of the power conferred by section forty-one of the principal Act[37] (and with due regard to the requirements of that section as to valuation) to appropriate the said interest in the dwelling-house in or towards satisfaction of any absolute interest of the surviving husband or wife in the real and personal estate of the intestate.
[37] Note: The “principal Act” is defined in section 1 to mean the Administration of Estates Act 1925 (UK).
…
2.             Where—
(a)the dwelling-house forms part of a building and an interest in the whole of the building is comprised in the residuary estate; or
(b)the dwelling-house is held with agricultural land and an interest in the agricultural land is comprised in the residuary estate; or
(c)the whole or a part of the dwelling-house was at the time of the intestate’s death used as a hotel or lodging house; or
(d)a part of the dwelling-house was at the time of the intestate’s death used for purposes other than domestic purposes,
the right conferred by paragraph 1 of this Schedule shall not be exercisable unless the court, on being satisfied that the exercise of that right is not likely to diminish the value of assets in the residuary estate (other than the said interest in the dwelling-house) or make them more difficult to dispose of, so orders.
…
7.(1)     Except where the context otherwise requires, references in this Schedule to a dwelling-house include references to any garden or portion of ground attached to and usually occupied with the dwelling-house or otherwise required for the amenity or convenience of the dwelling-house.
(2)     This Schedule shall be construed as one with Part IV of the principal Act.
Clause 5 of the Intestates’ Estates Act incorporated Schedule 2 into the Act in the following manner:
The Second Schedule to this Act shall have effect for enabling the surviving husband or wife of a person dying intestate after the commencement of this Act to acquire the matrimonial home.
The general purpose of the Intestates’ Estates Act, and the specific purposes of Clause 5 and Schedule 2, were outlined in the Second Reading Speech to the relevant Bill:[38]
The general purpose of this Bill can however be stated in a very few words. What the sponsors of the Bill are seeking to do is to provide more generously for the widow and the dependants of a man who has died wholly or partially intestate.
…
Clause 5 and the Second Schedule are important. They give the widow the right to ask that the matrimonial home shall be set-off and appropriated to her. The personal representatives have always been able to do that, if they so wished. We are now turning that right into an obligation, because I think it stands to reason that most men want to provide for the widow being able to continue living in what has been the matrimonial home. That is what the Morton Committee said.
Unfortunately, great difficulty arose in working out the machinery for this provision and, in the first place, this was not included in the Bill. But the Law Society have now come forward with a suggestion that Section 41 of the Administration of Estates Act, 1925, provides a possible solution: the power of appropriation granted to the personal representatives in that section might be the solution. All the other solutions put forward would inevitably have resulted in litigation of some sort. This clause is not perfect, and I shall be the first to admit it; but I think we have now hit upon a solution. I hope that your Lordships, if you can improve [it], will not hesitate to do so at a later stage. I am certain, however, that the principle is sound. Certainly statistics bear out that the vast majority of men in these circumstances would desire their widows to continue living in the matrimonial home. Of course, there are circumstances of hardship which one can readily envisage—for instance, where a man marries for the second time, late in life, and the children who have lived for many years in the family house see the house going to the second wife for whom they have little or no affection. But we cannot legislate for everyone, and I think the legislation in this clause covers the large majority of cases.
[38] United Kingdom, House of Lords, Parliamentary Debates, (Hansard), 29 July 1952, at 388, 393-394 (Lord Mancroft).

The reference in the Second Reading Speech to the Morton Committee is a reference to the Committee on the Law of Intestate Commission which sat in October 1950 and July 1951 and was chaired by Lord Morton of Henryton. The committee published a report in 1951, entitled “Report of the Committee on the Law of Intestate Succession”, making recommendations concerning the right of a surviving spouse to acquire the matrimonial home in the following terms:
If at the date of the intestate’s death the surviving spouse was living in a freehold house owned by the intestate, or in a house held by the intestate under a tenancy with two years or more unexpired at the date of death, the spouse should have the option to purchase such house or the intestate’s interest therein from the estate at a price to be ascertained in the manner suggested in paragraph 25 below, such option to be exercised before the expiration of twelve months from the date of the grant of representation in respect of the intestate’s estate. In subsequent paragraphs we use the phrase “the matrimonial home”, for convenience, in referring to a house which falls within the scope of this option to purchase. In most cases such a house will in fact be the matrimonial home, but in our view the surviving spouse should have this option to purchase from the estate the house in which he or she was living, whether or not the intestate was also living there. Complications may arise, for example if the spouse was living in part of an hotel owned by the intestate, but such complications could be avoided by a careful statutory definition of the word “house” for the purposes of this provision.
…
… It will be appropriate at this stage to discuss what interest, if any, in the matrimonial home should be given to the surviving spouse. We have already drawn attention to the fact that the greatly increased value of house property now renders it impossible in the majority of cases for the spouse to ask the personal representative to appropriate the matrimonial home to the whole or part of the statutory legacy of ₤1,000. Therefore, unless the intestate’s children are able to agree to allow the spouse to remain in the house, it must often be sold, where the estate is over ₤1,000, in order to provide the children’s immediate share of the estate. Those who have submitted evidence to us have made varying suggestions as to the provision which should be made for the spouse in respect of the matrimonial home and the proposals fall naturally into three groups:-
(a)     merely to increase the statutory legacy;
(b)     to give the matrimonial home to the spouse;
(c)     to give the spouse an option to purchase the matrimonial home at a fixed value.
…
It appears to us, therefore, that the balance of interests is maintained if the right to be given to the surviving spouse is an option to purchase from the estate the intestate’s interest in the matrimonial home. This right will give the spouse an advantage which he or she does not possess under the existing law because, provided a limit is set on the period during which the option can be exercised, the personal representatives will not be able to sell the house against the wishes of the spouse until the option expires.
There is the further point as to the nature of the intestate’s interest in the matrimonial home. We feel that where a house is held on a yearly tenancy or on a tenancy for an even shorter period, the substitution of the surviving spouse as tenant is really a matter for arrangement between the legal personal representatives of the intestate, the spouse and the landlord of the premises. We are also reluctant to make any proposals with regard to the position of the surviving spouse of a statutory tenant for whom existing legislation already affords some measure of protection. For these reasons, we are of the opinion that the right to purchase the intestate’s interest should be given only where the matrimonial home consists of a freehold house owned by the intestate or a house held by the intestate under a lease with two years or more unexpired at the date of death.
We think it is fair that a spouse exercising the option to purchase should pay the price which the property would fetch if sold in the open market at the time of the intestate’s death. … It has been suggested that the spouse should be given the option to purchase the house at the concessional value … This lower value will, of course, be more favourable to the spouse. We have, however, to take into account the interests of the children who will be adversely affected by such a basis for valuation. … We, therefore, regard the market value at the date of the intestate’s death as the most suitable for the purpose of exercising the option to purchase.
The provisions of the Intestates’ Estates Act concerning the rights of the surviving spouse provided a model for the enactment of broadly similar enactments in Australia. Legislation in the Australian Capital Territory, New South Wales, the Northern Territory, Queensland and Western Australia were closely modelled on the United Kingdom legislation.[39] In particular, the substance of paragraphs 1(1) and 2 of Schedule 2 of the Intestates’ Estates Act were adopted – in some cases almost verbatim. In Victoria,[40] the legislation adopted, in substance, paragraph 1(1) of Schedule 2, but in the case of a dwellinghouse held with agricultural land, the surviving spouse had an unrestricted right of election.[41] In South Australia, section 72L picked up the substance of paragraph 1(1) of Schedule 2 of the Intestates’ Estates Act, but omitted entirely paragraph 2.
[39] Administration and Probate Act 1929 (ACT), sections 49F-49N; Probate and Administration Act 1898 (NSW), section 61D and Fourth Schedule; Administration and Probate Act (NT), sections 72-79; Succession Act 1981 (Qld), sections 39A-39D; Administration Act 1903 (WA), Fourth Schedule.
[40] Administration and Probate Act 1958 (Vic), section 37A.
[41] Administration and Probate Act 1958 (Vic), section 37A(11).
In Tasmania, there is no comparable legislation. The rights of a surviving spouse lie in equity as well as in section 12 of the Trustee Act 1898 (Tas), which provides for the rights of a trustee or administrator to purchase trust property.
An analysis of the United Kingdom legislation as well as the legislation in the other mainland Australian States assists in the interpretation of section 72L of the Administration and Probate Act. I will return to this analysis later in my reasons.
Statutory Construction
It is convenient to refer to six principles of statutory construction that guide the approach to be taken to the interpretation of Part 3A of the Administration and Probate Act.
The first principle is that adopting a purposive construction is the usual or general approach to be taken to issues of statutory construction.[42] In Palgo Holdings Pty Ltd v Gowans,[43] Kirby J summarised the principle as follows:
Purposive interpretation: The first principle holds that a purposive and not a literal approach[44] is the method of statutory construction that now prevails:[45]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[46] As Lord Diplock explained, in an extra-judicial comment,[47] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[48]
[42] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
[43] Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[44] Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[45] Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, per McHugh JA, approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[46] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321
[47] Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[48] Diplock, “The Courts as Legislators”, in The Lawyer and Justice (1978) 263, at p 274, cited in Kingston (1987) 11 NSWLR 404 at 424.
A purposive approach to statutory construction is prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
In Mills v Meeking[49] Dawson J, when addressing section 35(a) of the Interpretation of Legislation Act 1984 (Vic), which is in similar terms to section 22(1) of the Acts Interpretation Act, observed:
[T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act … The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose … The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.
[49] Mills v Meeking (1990) 169 CLR 214 at 235 (footnotes omitted).
In Burch v South Australia,[50] Cox J considered that section 22 of the Acts Interpretation Act should be similarly construed. His Honour considered that it was not necessary first to identify that the section under consideration was open to more than one construction before the purpose of the enactment could be referred to:[51]
It would be strange if the mischief rule could not be used where there is no apparent ambiguity but a literal interpretation would lead to inconsistency or injustice.
[50] Burch v South Australia (1998) 71 SASR 12.
[51] Burch v South Australia (1998) 71 SASR 12 at 18.
It should be noted that the interpretation of section 22 of the Acts Interpretation Act is still open to doubt. As Doyle CJ observed in Di Maria:[52]
[I]n more recent times the so-called purposive approach to interpretation has predominated. Under this approach, the purpose of the legislation, as understood by the court, may influence the process of construction. But it could do so only if the literal approach resulted in an ambiguity or inconsistency. These approaches, and the use of the purposive approach, are discussed in D C Pearce & R S Geddes, Statutory Interpretation in Australia (4th ed, 1996), Ch 2. The use of the purposive approach has, in my opinion, been assisted by rather than been dependent upon statutory provisions requiring courts to adopt a purposive approach. In my opinion, the purposive approach should be adopted by this Court and has, generally, been adopted.
That view is reinforced by s 22 of the Acts Interpretation Act 1915 (SA) …
However, it must be noted that in South Australia there must first be more than one construction “reasonably open”. Under such a provision it is open to argument whether the purpose of the legislation may be taken into account in deciding whether more than one construction is open: cf Mills v Meeking (1990) 169 CLR 214 at 234–235, per Dawson J. Having heard no submissions on this point, or indeed on the relevant principles of interpretation at all, I put that issue to one side, it not being appropriate to decide it now.
[52] R v Di Maria And Others (1996) 67 SASR 466 at 472.
The second principle holds that beneficial and remedial legislation must be given a liberal construction, which constitutes “the widest interpretation which its language will permit”.[53] A remedial or beneficial statutory provision is one that gives some benefit to a person and thereby remedies some injustice.[54] In IW v City of Perth,[55] Brennan CJ and McHugh J outlined the appropriate approach to statutory construction in the following terms:
[It is a] rule of construction that beneficial and remedial legislation … is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.
[53] State of New South Wales v Amery (2006) 230 CLR 174 at [138] (Kirby J) citing Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260–261 (McHugh J) and Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [152] (Kirby J).
[54] Re McComb [1993] 3 VR 485 at [22].
[55] IW v City of Perth (1996) 191 CLR 1 at 12 (Brennan CJ and McHugh J) (footnotes omitted).
The third principle recognises that all words in a statute must prima facie be given some meaning and effect. This principle was discussed by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority:[56]
[A] court construing a statutory provision must strive to give meaning to every word of the provision.[57] In The Commonwealth v Baume[58] Griffith CJ cited R v Berchet[59] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[56] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[57] The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ.
[58] (1905) 2 CLR 405 at 414.
[59] (1688) 1 Show KB 106 [89 ER 480].
The fourth principle may be expressed as the desirability that comparable or in pari materia legislation in other Australian jurisdictions should receive a consistent interpretation. In this regard, I rely upon the following observation of Southwell J in Melville Homes Pty Ltd v Prime Ceramics Services Pty Ltd,[60] in the context of a discussion of the proper approach to the interpretation of the Commercial Arbitration Act 1984 (Vic), which had a legislative counterpart in all other State jurisdictions:
There is common commercial arbitration legislation throughout the Commonwealth. In R v Parsons [1983] 2 VR 499, the Full Court held that State courts should give a consistent meaning to a Commonwealth statute. In my opinion, by analogy the courts should attempt to give consistent interpretations to common State legislation. It would be undesirable if, in a dispute in Albury, s. 26 of the Commercial Arbitration Act was given a meaning different to that which might be given by this court in relation to a dispute in Wodonga.
This principle has particular force if the legislation under consideration and that with which it is compared had their origins in the same source.[61] The in pari materia principle extends to statutes in different jurisdictions.[62]
[60] Melville Homes Pty Ltd v Prime Ceramics Services Pty Ltd [1991] 2 VR 211 at 213.
[61] DC Pearce and KS Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [3.36], citing inter alia, Ory and Ory v Betamore Pty Ltd (1990) 54 SASR 331 at 345.
[62] DC Pearce and KS Geddes, Statutory Interpretation in Australia (6th ed, 2006) at [3.36], citing inter alia, Danziger v Hydro-Electric Commn [1961] Tas SR 20 at 24.
The fifth matter to be considered when discussing the general approach to be taken to statutory interpretation is the interaction between the common law and statutory provisions. This may be described as an application of the principle that a statutory provision is to be interpreted in its context. The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[63]
Contextual interpretation: The second principle holds that the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[64] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[65]
Further, the context of a statute is not confined to its own words and their deployment within it, but also includes the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, which embraces the then understanding of equity and the common law.[66]
[63] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[64] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28], per Lord Steyn.
[65] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
[66] K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J); Wik Peoples v Queensland (1996) 187 CLR 1 at 171 (Gummow J).
The sixth and final principle holds that extrinsic materials such as Second Reading Speeches, Explanatory Memoranda or Reports of Law Reform Commissions may throw light upon the purpose of a statute and even in some cases the meaning to be given to its words.[67] In CIC Insurance Ltd v Bankstown Football Club Ltd,[68] Brennan CJ, Dawson, Toohey and Gummow JJ articulated the principle as follows:
It is well settled that at common law … the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.[69] Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.[70]
[67] Owen v South Australia (1996) 66 SASR 251 at 255-256; Thomas v Mowbray (2007) 237 ALR 194 at [525] (Callinan J).
[68] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
[69] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft [1975] AC 591 at 614, 629, 638; Wacando v The Commonwealth (1981) 148 CLR 1 at 25-26; Pepper v Hart [1993] AC 593 at 630.
[70] Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315.
The Interest Question

Earlier in these reasons the text of section 72L was set out. It will be recalled that the section provides for the statutory right of election in relation to “an interest in a dwellinghouse”. The question is whether the election relates to the land on which the dwellinghouse stands.
The Parties’ Contentions
Public Trustee contended that there were two possible interpretations of the scope of the “interest” over which an election may be made.
On one view, section 72L would enable a spouse to acquire the entire leasehold, because this is the relevant interest. It would follow that a surviving spouse would be entitled to purchase the interest, which interest would include but is not necessarily limited to the dwellinghouse. It is relevant that section 72L does not talk of acquiring “the dwellinghouse”, but rather of acquiring “an interest in the dwellinghouse”. On this interpretation Mrs O’Donnell would be entitled to acquire the lease, which would include the right to the entire 175.6 hectares. The contrary view is that section 72L also refers to acquiring “that interest” which should be limited to the dwellinghouse. The word dwellinghouse is defined to include “curtilage”.
Public Trustee submitted that the preferable interpretation was that the ability to acquire an interest when used in section 72L, was that it was only intended to refer to the interest in the area of land comprising the dwellinghouse and curtilage. Attention was drawn to section 72M(1)(a)(i), which refers to the right of the surviving spouse to continue to reside in the dwellinghouse until the expiration of the period within which he (or she) is entitled “to elect to acquire the dwellinghouse”. It was emphasised that in this sub-paragraph the legislation referred directly to acquiring “the dwellinghouse” as opposed to an interest in the dwellinghouse. It was submitted that, when reading the Act as a whole, it was clear that the legislature did not intend the word “interest” to have the meaning of the lease, but that what was intended was the acquisition of the dwellinghouse and the curtilage.
It was pointed out that, unlike equivalent Acts in some other jurisdictions in Australia, the Administration and Probate Act did not expressly provide that an interest in a dwellinghouse meant an interest in land on which the dwellinghouse stands. By contrast, section 61A of the Probate and Administration Act 1898 (NSW) sets out the following definitions, in the context of section 61D, which gives the surviving spouse a right to require the administrator of the intestate estate to hold an interest in a dwellinghouse in trust for him or her:
“dwelling-house” means:
(a)     a building that is designed to be used, or designed to be used principally, as a separate residence for one family or person, together with the land which forms the curtilage of the building, or
(b)     an apartment or flat that is so designed, together with any interest in any part of the building of which the apartment or flat forms part, or in any part of the curtilage of that building, that is owned or otherwise held in conjunction with that apartment or flat.
…
“interest”, in relation to a shared home, means:
(a)     an estate in fee simple,
(b)     a leasehold estate which has not less than 14 years to run or, in the case of a leasehold estate having less than 14 years to run, which confers a right of renewal for one or more terms of not less than 14 years in the aggregate, or
(c)     an exclusive licence to occupy conferred by virtue of a holding of shares in a company that owns the parcel of land on which is erected the building in which the shared home is included,
and includes an interest held by an intestate as a tenant in common (but only if there is only one other tenant in common and that tenant in common is the surviving spouse of the intestate for whom part of the estate of the intestate is required to be held in trust under section 61B (3), (3A) or (3B)), but does not include an interest so held as a joint tenant.
…
“shared home”, in relation to an intestate’s estate, means a dwelling-house in which the intestate held an interest in respect of which the surviving spouse or de facto spouse of the intestate for whom part of the estate of the intestate is required to be held in trust under section 61B (3), (3A) or (3B) is entitled to exercise the right conferred by section 61D.
[Emphasis added]
Likewise, section 34B of the Succession Act 1981 (Qld) provides the following definitions in the context of section 39A(2), which gives the surviving spouse a right to elect to acquire the intestate’s interest in the shared home at transfer value:
(1)A shared home means a building, or part of a building, designed to be used solely or principally as a separate residence for 1 family or person.
…
(3) An interest, in an intestate’s shared home, means—
(a) an interest registered or registrable under an Act that is or includes a shared home;
[Emphasis added]
Similarly, section 37A(1) of the Administration and Probate Act 1958 (Vic) sets out the following definition in the context of section 37A(2), which gives the surviving spouse a right to elect to acquire the intestate’s interest in the shared home at its value at the date of the person’s death:
(1) In this section-
…
“shared home” means a residence that was the principal place of residence of an intestate and the intestate's partner at the time of the intestate’s death.
Subparagraphs (10) and (11) then work to expand the definition of “shared home”:
(10)If a shared home is part of a larger property and the intestate's interest in the shared home cannot be severed from the intestate's interest in the larger property without subdividing that property, a reference to the shared home in this section is to be read as a reference to that property.
(11)Despite subsection (10), if a shared home is part of a farm, a reference to the shared home in this section is to be read as a reference to the entire farm.
Mrs O’Donnell submitted that the scope of the interest subject to election under section 72L constituted the interest in the whole of the Crown Lease. It was contended that a dwellinghouse was not something that could be acquired of itself – it is typically an improvement forming part of the land. It was submitted that the intestate estate did not include a dwellinghouse of itself, but rather it included a chattel real – a leasehold interest – that incorporated a right to occupy and enjoy, subject to the terms of the lease, both the dwellinghouse and the leasehold interest over the entire property. It was further submitted that the intestate estate’s interest in the dwellinghouse was not divisible from its interest in the Crown Lease. It was said that the right to purchase a fee simple on which the dwellinghouse stood could not be divorced from the right to purchase the fee simple of the entire property. It was contended that the only way in which Mrs O’Donnell could acquire the estate’s whole or entire interest in the dwellinghouse including the “curtilage” – the right to occupy and the right to acquire – was to acquire the intestate estate’s leasehold interest subject to the terms of the lease. It was suggested that the reference in section 72L to a right to acquire “an interest in a dwellinghouse” was simply a shorthand way of describing an interest in land on which a dwellinghouse stands.
The Construction of Section 72L
As earlier observed, a purposive approach is to be adopted. Broadly, the purpose of this legislation was to allow a surviving spouse in the case of an intestacy to have the right to continue to reside in the matrimonial home, and thereby avoid unnecessary emotional upset, and to allow the continuity of ongoing family life. The purpose of the legislation was beneficial in the sense that it was designed to benefit the position of the surviving spouse. These considerations suggest that it is appropriate to take a broad and generous approach to the interpretation of the legislation.
The relevant provisions of Part 3A of the Administration and Probate Act should be interpreted beneficially. The beneficial purpose of the Act includes the following:
-minimising the disruption to the lives of those who survive the death of the intestate;
-furthering, as much as possible, the continuity of the lifestyle for the remaining family; and
-acknowledging the central importance, including the emotional importance, of the matrimonial home – which may be a home on a rural rather than suburban property – in the life of the surviving spouse.
Interpreting the phrase “interest in a dwellinghouse” to include, relevantly, an interest in a Crown Lease on which there is a dwellinghouse would promote the beneficial purposes of the relevant provisions of Part 3A of the Administration and Probate Act as well as the protection of the other beneficiaries of the intestate estate. It is to be recognised that pursuant to section 72L, Mrs O’Donnell would still have to pay full value for the interest held by the estate.
Turning to the progenitor provision, it is relevant to note that paragraph 1 of Schedule 2 to the Intestates’ Estates Act 1952 (UK) refers to the right of election being in respect of an interest in a dwellinghouse. Paragraph 2 then provides a number of exceptions, including in paragraph 2(b) the circumstance where a dwellinghouse is held with agricultural land. In that circumstance the right of election is not exercisable unless the Court so orders:
Where—
…
(b) the dwelling-house is held with agricultural land and an interest in the agricultural land is comprised in the residuary estate;
the right conferred by paragraph 1 of this Schedule shall not be exercisable unless the court, on being satisfied that the exercise of that right is not likely to diminish the value of assets in the residuary estate (other than the said interest in the dwelling-house) or make them more difficult to dispose of, so orders.
This would appear to be a direct recognition that the interest in a dwellinghouse is a reference to the land title on which the dwellinghouse is situate. Paragraph 2(b) only operates in the circumstance where the dwellinghouse and the agricultural land are on the one land title. This exception has been adopted in a number of Australian States and Territories.[71] In Victoria, section 37A(11) of the Administration and Probate Act 1958 (Vic) (extracted earlier in these reasons) expressly provides that the right of election is available in the case of a dwellinghouse being held with agricultural land. Under this legislation there is no need for the consent of the Court. Again, this is an express recognition of the fact that an interest in a dwellinghouse is a reference to the land title on which the dwellinghouse stands.
[71] Administration and Probate Act 1929 (ACT), section 49K(b); Probate and Administration Act 1898 (NSW), Schedule 4, section 3(2)(b); Administration and Probate Act (NT), section 76(b); Succession Act 1981 (Q1d), section 39B(1)(b)(ii); Administration Act 1903 (WA), Fourth Schedule, section 2(b).
It is against this background that the legislation in South Australia is to be considered. As earlier observed, the South Australian legislature picked up the substance of paragraph 1(1) of Schedule 2 to the Intestates’ Estates Act 1952 (UK), but did not adopt the exceptions in paragraph 2. The history of the Administration and Probate Act, together with the comparable legislation both in the United Kingdom and other Australian States and Territories, would suggest that the phrase “interest in a dwellinghouse” in section 72L is a reference to an interest in the land on which the dwellinghouse stands.
The principles of statutory construction as earlier discussed, require the Court to give meaning to all words used in legislation. Accordingly, work must be given to the prefatory words “an interest in” in section 72L and the word “curtilage” in section 72B. The prefatory words in their ordinary meaning would suggest an interest of a proprietary nature. If that meaning is not given to the prefatory words, it is difficult to see what work they may perform. The prefatory words would be rendered otiose.
It may be suggested that the use of the word “curtilage” as an extension to a dwellinghouse in section 72B is an indication that section 72L did not provide a right to the land on which a dwellinghouse stands. That suggestion, however, overlooks the possibility that the curtilage to a dwellinghouse may extend onto a different land title. One example would be a large suburban property on two titles, with the dwellinghouse on one title and the curtilage extending onto another title – the whole property forming the one family residence.
In my view, in the context of Part 3A of the Administration and Probate Act, the reference in section 72L to a spouse’s right to acquire an “interest in a dwellinghouse” prima facie includes a right to acquire a proprietary leasehold interest in both the dwellinghouse and the land on which it is immediately affixed. This is supported by the deliberate use of the expressions “interest in a dwellinghouse” and “that interest” in section 72L which serve to confirm the scope of the interest. As a matter of construction, I reject the submission that the word “interest” in section 72L should be read down by reference to the word “curtilage” in section 72B.
Because a “dwellinghouse” is defined to include the “curtilage”, the question of how much further the scope of any proprietary interest in the land on which the dwellinghouse is situated will extend will be determined by the meaning of “curtilage”. This may lead to a right of election over a separate land title.
A recent publication of the National Committee for Uniform Succession Laws favours providing increased flexibility to surviving spouses to acquire any property of an intestate estate subject to paying full value for that property:[72]
The National Committee, therefore, prefers the option of giving the surviving spouse or partner the option of purchasing any property in the intestate estate. This allows greater flexibility for surviving spouses or partners to determine which parts of the intestate estate they can keep and creates a simpler regime, while still achieving the most appropriate balance between the interests of the surviving spouse or partner and the issue of the intestate in the limited range of circumstances to which the provisions will apply.
[72] New South Wales Law Reform Commission, ‘Report 116: Uniform Succession Laws Intestacy’ (April 2007) at [5.25].
As a consequence of the foregoing reasons, I am of the view that Mrs O’Donnell’s election was a valid election.
The Curtilage Question
In light of my conclusion on the interest question, it is not strictly necessary to consider the construction of the term “curtilage”. However, as the matter has been fully argued it is convenient to set out my views on that alternative question in summary form.[73]
[73] Kuru v State of New South Wales [2008] HCA 26 at [12], including footnote 5.
Public Trustee submitted that the 40-hectare allotment should be characterised as constituting the dwellinghouse and the curtilage for the purpose of the election.
It was submitted that there were three possible views as to what constituted the curtilage of the Hundred of Ritchie property:
-the whole of the Hundred of Ritchie property (175.6ha);
-the 40 hectare allotment (40.4ha); or
-the residence and a much smaller area surrounding the residence (less than 40.4ha).
It was acknowledged by both parties that the definition of “curtilage” operated as a functional definition, and, accordingly, the Court should adopt a purposive construction to the term. Reference was made to the decision of the Supreme Court of New South Wales in Milro Pty Ltd v Associated Securities Ltd,[74] cited with approval by this Court in Polites v City of Holdfast Bay (No 2),[75] where it was accepted that the definition of “curtilage” should not be limited to features such as driveways and courtyards, but should include land which serves the purpose of the building and contributes to the enjoyment of the building for the fulfilment of its purpose.[76] In Milro,[77] Hope J formulated the relevant tests as follows:
What land subserves the purposes of the building? What land actually or supposedly contributes to the enjoyment of the building for the fulfilment of its purposes?
It was submitted that the Milro formulation was the most appropriate approach in the context of the Administration and Probate Act.
[74] Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173 at 179.
[75] Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475.
[76] Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173 at 179.
[77] Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173 at 179.
It was accepted by both counsel that a broad and expansive approach to construction was appropriate. Such an approach acknowledged the purpose of the legislation and involved a degree of subjective judgment. Public Trustee submitted, however, that there must be some reasonable confinement to the scope of curtilage. It was contended that the reference to curtilage in section 72B reflected a deliberate intention of the legislature to limit the definition of what constitutes a dwellinghouse for the purpose of the Act, as otherwise the relevant limitation would simply be the boundary of the property. Applying the formulation in Milro,[78] Public Trustee contended that the curtilage should comprise the 40-hectare allotment:
Applying the formulation in Milro to the present situation, the Public Trustee considers that the better view is that Mrs O’Donnell is entitled to elect to acquire an interest over 40 hectares of the land comprising the dwelling and surrounds, backpacker facilities (shearing shed), the ablution block with concrete tank, 2003 implement shed and miscellaneous sheds. The proper functioning of the primary residence requires the granting of a larger area of land than the area immediately surrounding the residence. The larger area enables the collection of wood for use in the combustion heater, which is the only heater on the property and allows for an adequate supply of water. The fact that the improvements share the same electricity and water supply is another factor which suggests that, on these facts, the dwellinghouse includes the residence together with the 40 ha area incorporating the surrounding improvements.
The election to acquire the 40 ha would require a subdivision of the land. The Public Trustee does not understand that there would be any difficulty with this occurring. 40 ha is currently the minimum parcel allowed, for land zone general farming, under the Kangaroo Island Council Development Plan.
The Public Trustee considers it unlikely that “curtilage” consists of the entire 175 ha. This would not impose any limitation, apart from the current boundaries of the property. The Public Trustee doubts that the northern river area and the paddock area to the south of the improvements are necessary for the fulfilment of the purpose of the residence. It is submitted that ‘enjoyment’ as that word is used in Milro must be limited to something less than land which is capable of providing enjoyment, as the term is commonly used, to the occupier of a house. Were such an expansive understanding of the concept of ‘enjoyment’ to be applied in this context a house’s curtilage would be virtually indefinable as additional land almost always provides greater enjoyment, access to further amenities and greater resources.
A final view is that the dwellinghouse and curtilage only includes the residence and a much smaller area surrounding the residence (ie. an area much smaller than the 40 ha). The Public Trustee considers that this interpretation is unduly narrow and it … does not give sufficient weight to the nature of this particular property.
[78] Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173.

As to the curtilage question, Mrs O’Donnell submitted that “curtilage” was not a word of limitation. In this regard, it was contended that the proper understanding of the intestate estate’s “interest” should not be read down by reference to the word “curtilage” in section 72B, which, it was submitted, was intended to increase the scope of “an interest in a dwellinghouse”. Reliance was also placed on the Milro test for determining what land falls within the curtilage of a building.
Mrs O’Donnell opposed Public Trustee’s contention that the 40-hectare allotment should be characterised as constituting the dwellinghouse and the curtilage for the purpose of the election. The strong emotional attachment to the entire property as well as the physical use of the entire property as the dwellinghouse for a young family were emphasised. This matter was addressed in Mrs O’Donnell’s affidavit:
[T]he Public Trustee had suggested that only the 40 hectares of land surrounding the building comprising the main house (the “House”) would be conceded by it as “curtilage”. If the identification of the “dwelling-house” and “curtilage” were limited in that way, or any way other than the whole of the Allotment,[79] the proper enjoyment of the House and the various amenities intimately connected to it would be adversely affected. In particular:
[79] Defined in the affidavit as “a leasehold estate comprised in Register Book Volume 1324 Folio 31.”
The House and the Allotment comprise on whole. The present enjoyment of the House incorporates the visual amenity of the other areas on the Allotment, the views of the surrounding landscapes, the beautiful rural settings of the House on the allotment and its natural features, including the river running through the northern forested corner of the Allotment (the “River”), the winter flowing creek which runs through the central part of the Allotment (the “Creek”) and the woods in the southern, central and northern areas of the Allotment (the “Woods”).
The proper enjoyment of the House includes the ability to have guaranteed access to the water supplies on the Allotment, including the dam (the “Dam”) supplying the House and the shed to the west of the House (the “Shed”), the River and the Creek. There are no other permanent dams within a close proximity to the House that are suitable for a year-round supply of water.
The only form of heating in the House is a wood-fired combustion heater. This is an attractive feature of the House. In the southern fields of the Allotment are the stumps and remainders of trees that had been cleared in the past from which firewood is collected for the house. It is irresponsible to collect timber from the wooded areas on the Allotment as they comprise the habitat for indigenous fauna, including koala, kangaroo, echidna and various birds.
The different parts of the Allotment described above provide other enjoyments when living in the House. The River provides a supply of fresh marron and yabbies. We relocate undersize marrons to the dams on the Allotment. Traversing the middle section of the Allotment is another forested area through which flows the Creek. We enjoy spotting the animals and birds when the children and I take walks in that area. To the north are fields from which needed firewood is collected.
The Shed located to the west of the House shares the same water supply from the Dam located to the South of the house and shed. In addition, both the shed and the house share the same electricity supply.
[The deceased] and I would never have considered purchasing the Allotment unless all of the features set out in the previous paragraph were present. This is because the River, the Creek, the Woods and the fields are all essential to the general amenity and enjoyment of the House.
To isolate the House within 40 hectares of land as proposed by the Public Trustee would divorce from the House those amenities and natural features that it currently enjoys and for which it was purchased.
Furthermore, the loss of the area surrounding the House on the Allotment would distress me greatly. The House and Allotment is the main physical connection that I have to the life that I lived with [the deceased]. Our entire married life was lived in the House on the Allotment before [the deceased] drowned. I have vivid and wonderful memories of buying the House and Allotment with [the deceased], of fishing with him in the River and walking with him and the children in the Creek area.
The loss of these areas of the Allotment would also distress Liam and Sarah. They were very young when [the deceased] died. They do not have many memories of their Dad but many of the memories that they do have of him are of spending time with him near the River, by the Creek and in the Woods. To lose these areas of the Allotment would sadden them as they would lose this emotional connection with [the deceased]. It would also sadden me if they lost this connection to him.
Having regard to the Kangaroo Island Council Better Development Plan it was submitted that the Hundred of Ritchie property should not be unnecessarily fragmented. The earlier referred to costs associated with the subdivision of the property were also highlighted. It was contended that Mrs O’Donnell should not be forced to bear these costs. Concern was also raised regarding the pragmatic problems of subdivision. Pursuant to the terms of the lease there would have to be surrender of the property to the Crown. Upon surrender, the land and the interest in it would revert to the Crown and no longer be estate property. A new lease would then have to be renegotiated before a new election could be made by Mrs O’Donnell. It was submitted that disruption and interference with existing proprietary interests should be avoided.
The curtilage of the home needs to be ascertained so that the land beyond it is available to the benefit of the rest of the estate. It may be observed that a dwellinghouse may contain a curtilage in circumstances where the dwellinghouse and curtilage are on different land titles.
It should first be observed that the notion that a dwellinghouse also includes a relevant “curtilage” has been adopted elsewhere in Australia. Under the New South Wales legislation[80] a dwellinghouse is defined to include “the land which forms the curtilage of the building”. No definition is given for curtilage. In both the Australian Capital Territory[81] and Western Australia[82] the word “curtilage” is not expressly used, however, a dwellinghouse is defined to include the “garden or portion of ground attached to and usually occupied” with the dwellinghouse or “otherwise required for the amenity or convenience” of the dwellinghouse. This is identical to paragraph 7(1) of Schedule 2 to the Intestates’ Estates Act 1952 (UK).
[80] Probate and Administration Act 1898 (NSW), section 61A(2).
[81] Administration and Probate Act 1929 (ACT), section 49F(a).
[82] Administration Act 1903 (WA), Fourth Schedule, section 1(4).
The question of what constitutes the curtilage of a dwellinghouse is a question of fact in each case.[83] The etymology of the word “curtilage” was traced by Debelle J in Polites v City of Holdfast Bay (No 2):[84]
The word “curtilage” is a term of art or, if not, is the next best thing: see Nourse LJ in Dyer v Dorset County Council [1989] QB 346 at 358. As Nourse LJ also noted in the same decision, the derivations mentioned in the Oxford English Dictionary (French, courtil – a little court or garth; Italian, corte; Medieval Latin, cortile or curtile – a court of yard) rather suggest that “curtilage” started life as a word describing a small area enclosed by walls or buildings, the smallness of the area being emphasised by the dimnuitive suffix “age”, as in village.
[83] Metheun-Campbell v Walters [1979] 1 QB 525.
[84] Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at 481.
The Oxford English Dictionary defines “curtilage” as follows:
A small court, yard, garth or piece of ground attached to a dwelling house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwellinghouse and its outbuildings.
The Macquarie Dictionary defines “curtilage” in these terms:
The area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosed.
In its contemporary application, it is not necessary for the curtilage to be physically enclosed.[85] It has been recognised that the curtilage of a dwelling house may extend to and include other areas and buildings. In Metheun-Campbell v Walters, Buckley LJ observed [86]
There can be very few houses indeed that do not have associated with them at least some few square yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the messuage and such small pieces of land would be held to fall within the curtilage of the messuage. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one messuage or parcel of land extending must depend on the character and circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one messuage or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole.
[85] Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at 481.
[86] Metheun-Campbell v Walters [1979] 1 QB 525 at 544.
More recently, Robert Walker LJ in Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Region,[87] considered the meaning of the term curtilage. The above observations of Buckley LJ were cited with approval. Reference was also made to the reasons of Nourse LJ in Dyer v Dorset County Council,[88] and in particular to the following remarks:[89]
While making every allowance for the fact that the size of a curtilage may vary somewhat with the size of the house or building, I am in no doubt that the 100 acre park on the edge of which Mr Dyer’s house now stands cannot possibly be said to form part and parcel of Kingston Maurward House, far less of any of the other college buildings. Indeed, a park of this size is altogether in excess of anything which could properly be described as the curtilage of a mansion house, an area which no conveyancer would extend beyond that occupied by the house, the stables and other outbuildings, the gardens and the rough grass up to the ha-ha, if there was one.
Robert Walker LJ then concluded as follows:[90]
I also respectfully doubt whether the expression “curtilage” can usefully be called a term of art. That phrase describes an expression which is used by persons skilled in some particular profession, art of science, and which the practitioners clearly understand even if the uninitiated do not. This case demonstrates that not even lawyers can have a precise idea of what “curtilage” means. It is, as this court said in Dyer’s case, a question of fact and degree.
[87] Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Region [2001] QB 59.
[88] Dyer v Dorset County Council [1989] QB 346.
[89] Dyer v Dorset County Council [1989] QB 346 at 358.
[90] Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Region [2001] QB 59 at 67.
It is important to recognise that the meaning of curtilage may vary according to the statutory context in which it is used,[91] and the character and circumstance of the land under consideration.[92]
[91] Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at [21] citing Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173 at 179 and Dyer v Dorset County Council [1989] 1 QB 347 at 355.
[92] Metheun-Campbell v Walters [1979] QB 525 at 544 (Buckley LJ).
As to the statutory context, as earlier observed, the relevant provisions of Part 3A of the Administration and Probate Act have a beneficial and remedial purpose. I accept Mrs O’Donnell’s submission that the benefit afforded, and the injustice avoided, by the Act concern the minimisation of disruption and inconvenience to the lives of the surviving spouse and dependent issue of the deceased, the promotion of the continuity of the lifestyle of these persons, and the acknowledgment of the importance of the matrimonial home in the life of the surviving spouse.
As earlier observed, it is well-established that beneficial and remedial legislation must be given a liberal construction.[93] In light of this principle, in my view curtilage in this context should be given a broad construction so as to effectuate this purpose.
[93] State of New South Wales v Amery (2006) 230 CLR 174 at [138] (Kirby J) citing Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260–261 (McHugh J) and Qantas Airways Ltd v Christie (1998) 193 CLR 280 at [152].
As to the character and circumstance of the land under question, it is significant that the Hundred of Ritchie property is in a rural setting, such that the scope of the curtilage of the dwellinghouse might be expected to be larger than that which might apply in an urban context.
I turn now to the special features of the Hundred of Ritchie property. The dwellinghouse is a homestead which serves both a rural (farming) and residential purpose. Both of these purposes must be considered when applying the Milro[94] test. In my view, as a matter of fact, a number of features of the land both subserve the purpose of the dwellinghouse and contribute to its enjoyment and amenity for the fulfilment of its purposes. Those features include the provisions for electricity supply, water and wood storage, the linked shedding, the natural waterways, and the wooded areas which comprise the habitat for indigenous fauna.
[94] Milro Pty Ltd v Associated Securities Ltd (1970) 92 WN (NSW) 173 at 179.
Reflecting on these features reveals that it is only a portion of the Hundred of Ritchie property which relevantly subserves the purposes and contributes to the enjoyment of the dwellinghouse. I accept the submission of Public Trustee that the curtilage in this particular case is confined to the 40 hectares of land, comprising the dwellinghouse and its surrounds. The proper functioning of the residence requires that the curtilage include this area. This area includes the sheds, ablution block, water tank and other facilities. As pointed out earlier, these facilities share a common electricity supply. This area would allow access to both wood and water. I accept that a more expansive understanding of the concept of enjoyment to be applied in the context of a dwellinghouse’s curtilage would be virtually indefinable, as additional land would almost invariably provide greater enjoyment and access to further amenities and resources.
In my view, this finding preserves the property against unnecessary fragmentation and acknowledges the strong emotional attachment and connection held by Mrs O’Donnell and her children over the entire property.
This conclusion would not preclude Mrs O’Donnell from seeking to purchase the balance of the Hundred of Ritchie property. I refer to my earlier observations in paragraphs 31 to 37 of these reasons, and to my discussion of the rights of a trustee to purchase trust property, both in equity and pursuant to the Trustee Act. There also remain Mrs O’Donnell’s rights under the Inheritance (Family Provision) Act 1972 (SA). I also draw attention to the Court’s powers to approve a deed of compromise of such a claim, under section 6 of the Minors Contracts (Miscellaneous) Provisions Act 1979 (SA).
Conclusion
As earlier observed, my primary conclusion is that reference in section 72L(1) to “an interest in a dwellinghouse” is to be construed as a reference to the land title on which the particular dwellinghouse stands. As a consequence, Mrs O’Donnell is entitled to elect to acquire the entire Hundred of Ritchie property. There is no need in the circumstances of this particular case to further consider the question of curtilage. In the event that section 72L(1) was to be more narrowly construed, then it is my view that Mrs O’Donnell would be entitled to elect to acquire the 40-hectare allotment.
I direct that the interest over which Mrs O’Donnell is entitled to exercise her right of election pursuant to section 72L of the Administration and Probate Act, is the deceased’s interest in the dwellinghouse, being his interest in Crown Lease War Service (Personal Residence) Lease No. 602 Register Book Volume 1324 Folio 31 situate at Section 25 Hundred of Ritchie Kangaroo Island.