Robertson v Allen - [2003] NSWSC 848

CITATION: Robertson v. Allen & Ors [2003] NSWSC 848

HEARING DATE(S): 09/09/2003

JUDGMENT DATE:
26 September 2003

JURISDICTION:
Equity

JUDGMENT OF: Bryson J at 1

DECISION: Declaration on construction of will: see [40]

CATCHWORDS: WILLS PROBATE and ADMINISTRATION - Will Construction - gift of shares to a company which had no function except as trustee of a discretionary trust was held to be subject to that discretionary trust - direction to executors to transfer the shares so given on 10th anniversary of testatrix' death was held not to postpone passing of beneficial ownership and right of donee to call for transfer earlier - alternatively there was such a right under rule in Saunders v. Vautier - decision on terms of will.

LEGISLATION CITED: Wills Probate Administration Act 1898 s.21
Corporations Act 2001 s.9, 259C, 259E
s.17(1) of the Companies Act 1961

CASES CITED: Saunders v. Vautier (1841) 4 Beav 115, 49 ER 282
Wharton & Warwick v. Masterman [1895] AC 186 at 198
Weatherall v. Thornburgh [1878] 8 Ch.D 261
Sir Moses Montefiore Jewish Home v. Howell & Co. (No. 7) Pty Ltd [1984] 2 NSWLR 406
Gartside v. Inland Revenue Commissioners [1968] AC 553
Bond Corporation Pty Ltd v. White Industries Ltd [1980] 2 NSWLR 351

PARTIES :
Philip Macpherson Robertson - Plaintiff
Robert Samuel Allen - First Defendant
Christopher William Welsh - Second Defendant
Philrob Nominees Pty Ltd - Third Defendant

FILE NUMBER(S): SC 6090/2001

COUNSEL: C. Birch SC and J. Loofs - Plaintiff
A. Hill & V. Hartstein - Defendants

SOLICITORS: Kell Moore Solicitors - Plaintiff
Addisons Solicitors - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

Friday 26 September 2003

6090/01 ROBERTSON v. ALLEN & 2 ORS

JUDGMENT

1 HIS HONOUR: These proceedings relate principally to the meaning and operation of the will and codicil of Dallis Robertson of West Albury New South Wales, Widow, who died on 7 September 1999, having made her last will dated 17 October 1996 and a codicil thereto dated 30 July 1999. The plaintiff is the surviving son of the testatrix. The first and second defendants Mr R.S. Allen, accountant, and Mr C.W. Welsh, solicitor, were appointed to be executors and trustees by cl.2 of her will, and they obtained a grant of probate of the will and codicil from this Court on 20 January 2000.

2 The third defendant Philrob Nominees Pty Ltd is a company formed in Victoria on 30 September 1975. At the time the testatrix died the only business or affairs of Philrob Nominees was that it held office as trustee of the Leith Trust. So far as appears from evidence Philrob Nominees has never had any other business. Its Memorandum of Association stated the objects for which the company was established at great length, and the very large number of businesses and activities referred to in cl.2 of the Memorandum of Association include in subcl.(vii) undertaking the office of and acting as a trustee, and transacting trust and agency business,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robertson v Allen

Details

AGLC: Robertson v Allen [2003] NSWSC 848
Case: [2003] NSWSC 848
Decision Date: 26 September 2003

CaseChat Overview and Summary

The case of Robertson v Allen involved a dispute over the interpretation of a will. The deceased had bequeathed shares to a company, which functioned solely as a trustee of a discretionary trust. The executors were directed to transfer the shares on the tenth anniversary of the testatrix's death, but the beneficiaries argued that the shares were subject to the discretionary trust and that they could call for the transfer earlier. The court had to determine whether the shares were subject to the discretionary trust and if the beneficiaries had the right to call for the transfer of the shares before the tenth anniversary of the testatrix's death.

The legal issues before the court were whether the shares were subject to the discretionary trust and whether the beneficiaries had the right to call for the transfer of the shares before the tenth anniversary of the testatrix's death. The court had to interpret the terms of the will and consider the relevant principles of trust law.

The court held that the shares were subject to the discretionary trust and that the beneficiaries had the right to call for the transfer of the shares before the tenth anniversary of the testatrix's death. The court found that the direction to the executors to transfer the shares on the tenth anniversary did not postpone the passing of beneficial ownership and the right of the donee to call for the transfer earlier. The court also found that there was such a right under the rule in Saunders v Vautier. The court's decision was based on the terms of the will and the relevant principles of trust law.

The court made orders in favour of the beneficiaries, directing the executors to transfer the shares to the beneficiaries in accordance with the terms of the discretionary trust. The court also found that the beneficiaries had the right to call for the transfer of the shares before the tenth anniversary of the testatrix's death.

Orders