Rodriguan Social Club of Victoria Inc v Ithier & Anor

[2007] VSC 393

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 10569 of 2006

RODRIGUAN SOCIAL CLUB OF VICTORIA INCORPORATED (AIN A0031876Y)	Plaintiff
v
JUNE MAREE ITHIER AND LOUISE ANGELLE ITHIER	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2007
DATE OF JUDGMENT:	1 October 2007
CASE MAY BE CITED AS:	Rodriguan Social Club of Vic Inc v Ithier
MEDIUM NEUTRAL CITATION:	[2007] VSC 393

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ADMINISTRATION AND PROBATE – Legacy conditional on commencement of construction of building – Whether construction commenced

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Cook	Brasse Lawyers
For the Defendant	Mr S Newton	Harwood Andrews Lawyers

HIS HONOUR:

1. The deceased, Linda Caroline Casey, died on 11 August 2005 leaving a will dated 29 September 2003 in which she appointed as her executors the defendants, June Maree Ithier and Louise Angelle Ithier.  By clause 3 of the will the deceased gave a legacy of $100,000 to the plaintiff, Rodriguan Social Club of Victoria Incorporated whom I shall refer to “the club”.  This gift was expressed to be for the purpose of building a clubhouse to be used and occupied by the club.

The will then provided as follows:

“These funds are not to be used for any other purpose and if the construction of the clubhouse is not commenced within 12 months from the date of grant of probate of my will, then this bequest is deemed to have lapsed and these funds are to revert to my residuary estate”.

1. Probate was granted on 24 October 2005 so that the condition in the will required that the construction of the clubhouse commence by 24 October 2006.  The sole issue in this case is whether the construction had commenced by that date.

1. The uncontradicted evidence showed that upon learning of the legacy, the club purchased land for the clubhouse at a cost of some $150,000, borrowing for this purpose $108,500 from the Westpac Bank.  The balance was provided from club funds or club members.  The club went through the usual steps preparatory to construction by obtaining a planning permit on 18 September 2006, and a building permit on 20 October 2006.

1. As the 12 month date approached the club, on 21 October 2006, entered into a contract with the builder, P & M Spina & Co Pty Ltd, to construct the clubhouse to lockup stage for $203,500, including GST.  I was told that the legacy was to be used to pay for this work.  A deposit of $10,000 was paid to the builder.

1. The land at 48 Garnsworthy Street, Springvale, which had been purchased as the site for the clubhouse, was vacant land.  On 21 October the builder attended the site with plant and commenced to clear the vegetation and level the site for the building.  The builder continued on site for some days thereafter, applying for water tapping and a sewer point and paid building fees to the council.

1. In the meantime, the solicitors for the executors, on 25 October, wrote to the solicitors for the club indicating that the legacy would not be paid as work had not commenced within the stipulated 12 month period.  Accordingly, work was suspended and this proceeding was commenced on 8 March 2007.

1. It was not contended that some work towards the clubhouse had not been commenced on 21 October 2006.  What was put was that it was not an actual and genuine commencement, because the club did not have the funds to complete the building or to fit it out.  The terms of the will require only that the work be commenced by the due date.  It is clear that this occurred.  I do not find that this was a sham commencement.  Accordingly, the legacy should be paid.

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