Roberts v Pollock

Case [2019] QSC 184

SUPREME COURT OF QUEENSLAND

CITATION:

Roberts v Pollock & Anor [2019] QSC 184

PARTIES:

COLIN BENJAMIN ROBERTS (as the executor of the estate of ALISTAIR GOW HENDERSON, deceased)

(Applicant)

v
DAVID ANDREW POLLOCK
(First Respondent)

AND

WATCHTOWER BIBLE AND TRACT SOCIETY OF AUSTRALIA

(Second Respondent)

FILE NO/S:

BS No 6858 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

31 July 2019

DELIVERED AT:

Brisbane

HEARING DATE:

2, 8 August 2018, 13 November 2018

JUDGE:

Davis J

ORDER:

It is declared that:

1.   (a)    By clause 4 of the last will of Alistair Gow Henderson (deceased) the benefit of Suncorp Bank Account No 042592860 passes to David Andrew Pollock; and

(b)    By clause 5 of the last will of Alistair Gow Henderson (deceased) the benefit of Suncorp Bank Account No 601899465 and the benefit of Suncorp Term Deposits 506342531 and 506337074 pass to the Watchtower Bible and Tract Society of Australia.

2.   The parties will be heard on the question of costs.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR'S INTENTION – GENERALLY – where the testator left “all monies standing to my credit with the Stanthorpe Branch of any bank or banks at the time of my death” to his brother-in-law under his last will – where the testator left “the rest and residue of my real and personal estate including any property over which I may have any power of testamentary disposition” to the Watchtower Bible and Tract Society of Australia in his last will – where the testator had, amongst his assets at the time of his death, two term deposits made through the Stanthorpe Branch of Suncorp and an account opened at the Hornsby Branch of Suncorp – whether the money in the Hornsby account falls to residue and passes to the second respondent – whether the term deposits are regarded as money standing to the holder’s credit at the Stanthorpe Branch of Suncorp

Administration of Justice Act 1982 (UK), s 21
Evidence Act 1977, s 92
Succession Act 1981, s 33C

Ashton v Ashton [2010] QSC 326, cited
Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd [2019] QSC 163, cited
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15, followed
Byrnesv Kendle (2011) 243 CLR 253; [2011] HCA 26, cited
Coorey v George, unreported Supreme Court of New South Wales 27 February 1986, followed
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, followed
Farrelly v Phillips (2017) 128 SASR 502, followed
Fell v Fell (1922) 31 CLR 268; [1922] HCA 55, followed
Hatzantonis v Lawrence [2003] NSWSC 914, followed
Lindsay v McGrath [2016] 2 Qd R 160; [2015] QCA 206, cited
Marley v Rawlings [2015] AC 129, followed
Perpetual Trustee Co Ltd v Wright (1989) 9 NSWLR 18, followed
Perrin v Morgan [1943] AC 399

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Details
AGLC
Roberts v Pollock [2019] QSC 184
Case
[2019] QSC 184
Decision Date

CaseChat Overview and Summary

The case of Roberts v Pollock involved a dispute over the interpretation of the will of Alistair Gow Henderson, who passed away in 2008. The primary issue was the proper construction of the will, specifically focusing on which assets were bequeathed to David Andrew Pollock and which to the Watchtower Bible and Tract Society of Australia. The case revolved around several bank accounts and term deposits held by Mr Henderson at the time of his death. The first respondent claimed rights over certain assets, while the second respondent contended that other assets should pass to it under the will's residue clause.

The legal issues before the court involved determining the testator's intention in his will, particularly regarding the phrase "all monies standing to my credit with the Stanthorpe Branch of any bank or banks at the time of my death," and whether this phrase included specific bank accounts and term deposits. The court had to interpret whether certain term deposits were considered "money standing to [the testator’s] credit" at the Stanthorpe Branch, and if an account opened at the Hornsby Branch fell under the residue clause.

In delivering the judgment, the court examined the evidence provided and the relationship between Mr Henderson and his accountant, Mr Webb. It was clear that Mr Webb had managed Mr Henderson's investments and assets for many years, and the court considered the extent of Mr Webb's control and influence over these assets. The court found that the specific account held at the Stanthorpe Branch passed to David Andrew Pollock, while the term deposits and the account at the Hornsby Branch were part of the residue, passing to the Watchtower Bible and Tract Society of Australia. The court made specific declarations concerning the fate of the disputed assets and ordered that the matter of costs be heard separately.

Orders

Orders of the court

It is declared that:

1. (a) By clause 4 of the last will of Alistair Gow Henderson (deceased) the benefit of Suncorp Bank Account No 042592860 passes to David Andrew Pollock; and

(b) By clause 5 of the last will of Alistair Gow Henderson (deceased) the benefit of Suncorp Bank Account No 601899465 and the benefit of Suncorp Term Deposits 506342531 and 506337074 pass to the Watchtower Bible and Tract Society of Australia.

2. The parties will be heard on the question of costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is appropriate to analyse the evidence before determining its admissibility and significance (if admissible). The Evidence Mr Henderson married Ailsa Martin in 1961. Ailsa died in October 1967. In the 1970s the first respondent married Mr Henderson’s sister Susanne Pollock. Susanne died in October 2000. Mr Webb is an accountant who became professionally involved with Ailsa’s family (the Martin family) and then Mr Henderson. Mr Webb managed Ailsa’s assets. Upon Ailsa’s death, Mr Henderson inherited her estate which was substantial. The Martin family assets, of which Mr Henderson had an interest, consisted of property settled on trustees (including Mr Webb) through the deceased estate of Ailsa’s grandmother[4] (the settlement) and the assets held by two companies, F&M Investments Pty Ltd (F&M) and Neptune Investments Pty Ltd (Neptune). Ailsa had two siblings, John and Rosemary. They, with Mr Henderson were the effective beneficial owners of the settlement and any worth which attached to F&M and Neptune. [4] Transcript 13 November 2018; 1-19/15-20. Mr Henderson apparently did not possess skills in the management of things financial. Mr Webb undoubtedly did. Upon Ailsa’s death, Mr Henderson appointed Mr Webb and two others, Mr Frank Smith and Mr Keith Watson to be his attorneys. Mr Smith and Mr Watson were accountants who were practicing in partnership with each other and with Mr Webb. They have both since died, leaving Mr Webb as the sole surviving attorney. In the years which followed, Mr Webb made all significant decisions concerning the management and investment of Mr Henderson’s assets acquired through the Martin family. In Mr Webb’s evidence before me, the arrangement was described in these terms:“MR HORVATH: Thank you?---Because he[5] said when he learned of his wife’s death, he said ‘I don’t want to’ - ‘I don’t consider it my money. You just keep on investing it the way you did for my wife’.I’m going to come to that. Can I check with you, as far as I can tell, there was never a written plan prepared by you about where the money was going to go?---No. He left it entirely to me.Yes. For years and years, from 1967 onwards?---Yes. I handled all the family’s - most of the family’s money before this time - getting interest in those shares and I just continued on with my other director in all the investments.Yes. And you didn’t find it necessary to discuss with him what the long-term plan was for any of those assets in those family companies?---He had - we had an annual general meeting in Sydney to which he came every year.And at the annual general meeting - - -?---That’s right.- - - you would simply report to him what you were doing which you thought was in his best interests?---Yes.With those family companies?---Yes.And he let you do that from year to year?---Yes.”[6][5] A reference to Mr Henderson.[6] Transcript 13 November 2018; 1-17/43 to 1-18/15. In the 1970s account 860 was opened. Into that account went income earnt from investments made by Mr Webb. Mr Webb had no access to account 860 although he did receive information about it when necessary to prepare Mr Henderson’s tax returns. Mr Henderson operated account 860 without advice or input from Mr Webb. That account did not fund any of the investments made by Mr Webb on Mr Henderson’s behalf.

Decision

Reasons for decision

For the reasons I have already given, the scheme of the 2008 will was to pass the Cottonvale land to the first respondent together with the money that Mr Henderson was controlling himself, that is money held at the Suncorp Bank in Stanthorpe. The remainder of the estate, which included the investments not being managed by Mr Henderson, were then to fall to the second respondent. Term deposits, whether physically controlled through Stanthorpe or otherwise, are not within the gift under clause 4. The benefit of the term deposits fall to residue and then to the second respondent. Money held by Mr Webb through an account opened in Hornsby (465) falls to residue for the same reasons.Conclusion and order The application seeks relief in these terms:“TAKE NOTICE that the applicant is applying to the Court for the following orders:1. The following declarations, in respect of the Will dated 24 June 2008 [‘the Will’] of Alistair Gow Henderson, deceased, whether, on its proper construction, clause 4 confers on David Andrew Pollock:(a)Suncorp Bank Account No 042592860, Stanthorpe Branch; or in the alternative (b)Suncorp Bank Account No 042592860, Stanthorpe Branch·, Suncorp Term Deposit No 506342531 and Stanthorpe Branch, Suncorp Term Deposit No 506337074, Stanthorpe Branch; or in the alternative(c)Suncorp Bank Account No 042592860, Stanthorpe Branch, Suncorp Term Deposit No 506342531, Stanthorpe Branch, Suncorp Term Deposit No 506337074, Stanthorpe Branch and Suncorp Bank Account No 601899465, Hornsby Branch, NSW.2. That the costs of the applicant be paid out of the estate on the indemnity basis.3. Such further orders as the Court may deem appropriate.” The application therefore seeks declarations as to which of the disputed money falls to the first respondent. I intend to make a declaration, the broad effect of which is consistent with paragraph 1(a) of the application. However, rather than simply making a declaration concerning account 860, it is appropriate to declare the fate of the three items of property which are in dispute as well as clarifying the position of account 860. I make the following declarations:(i)By clause 4 of the last will of Alistair Gow Henderson (deceased) the benefit of Suncorp Bank Account No 042592860 passes to David Andrew Pollock; and(ii)By clause 5 of the last will of Alistair Gow Henderson (deceased) the benefit of Suncorp Bank Account No 601899465 and the benefit of Suncorp Term Deposits 506342531 and 506337074 pass to the Watchtower Bible and Tract Society of Australia. I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

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