SARICH v SARICH
[2017] WASC 222
•8 AUGUST 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SARICH -v- SARICH [2017] WASC 222
CORAM: MASTER SANDERSON
HEARD: 27 JULY 2017
DELIVERED : 27 JULY 2017
PUBLISHED : 8 AUGUST 2017
FILE NO/S: CIV 1589 of 2017
BETWEEN: IVAN JOSIP SARICH as Executor of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
Plaintiff
AND
IVAN JOSIP SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
First DefendantBRENDA CAROL SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
Second DefendantLUKA IVAN SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH) by his Guardian Ad Litem BRENDA CAROL SARICH
Third DefendantNATALIJA MARY SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARICH (also known as BRANKO IVAN SARICH and BRANKO SARICH) by her Guardian Ad Litem BRENDA CAROL SARICH
Fourth DefendantANTHONY SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
Fifth DefendantFREMANTLE LAWYERS PTY LTD
ASHLEY DAVID WILSON
NICHOLAS EMIL GVOZDIN
ANTE ZOROTOVICH
Sixth Defendants
Catchwords:
Probate - Proper interpretation of will - Turns on own facts
Legislation:
Administration Act 1903 (WA)
Planning and Development Act 2005 (WA)
Town Planning and Development Act 1928 (WA)
Trustees Act 1962 (WA)
Result:
Direction given
Category: B
Representation:
Counsel:
Plaintiff: Dr J J Hockley
First Defendant : No appearance
Second Defendant : Mr M A Tedeschi
Third Defendant : Mr M A Tedeschi
Fourth Defendant : Mr M A Tedeschi
Fifth Defendant : Ms W F Gillan
Sixth Defendants : Mr M D Cuerden SC
Solicitors:
Plaintiff: Delta Legal
First Defendant : No appearance
Second Defendant : JK Legal
Third Defendant : JK Legal
Fourth Defendant : JK Legal
Fifth Defendant : Armstrong Legal
Sixth Defendants : Denman Popperwell Lawyers
Case(s) referred to in judgment(s):
Bakranich v Robertson [2005] WASC 12
Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41
Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404
Landall Construction and Development Co Pty Ltd v Bogaers [1980] WAR 33
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
Love v Brien [2012] WASC 457
Origin Energy Power Ltd and Commissioner of State Revenue [2007] WASAT 302
Palamore Pty Ltd v Clode (Unreported, WASC, Library No 980599, 16 October 1998)
Perpetual Trustees WA Ltd v Riverwest [2004] WASC 81
Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232
MASTER SANDERSON: The plaintiff is the executor of the Will of the late Ivan Branimir Saric. The first to fifth defendants are beneficiaries of the deceased's estate. The sixth defendants are the solicitors who drew the deceased's Will. The plaintiff sought directions as to the proper interpretation of the deceased's Will there being confusion as to its proper meaning and a dispute among the beneficiaries. After hearing argument I made orders largely in terms of a minute filed by the plaintiff which provided certain directions as to the proper interpretation of the Will. I indicated I would publish reasons for my decision. These are those reasons.
The probate of the deceased's Will was granted on 24 December 2015 and amended on 14 January 2016. The Will is a relatively simple document. By paragraph 1 all previous Wills are revoked. By paragraph 2 the plaintiff is appointed executor of the deceased's Will. By paragraph 3 all monies in bank accounts in Australia and certain other chattels are given to the first defendant. There then follows the clause which has caused concern. It is clause 4 and I will quote it in full:
I give the balance of my estate both real and personal, of whatsoever nature and wheresoever situated in Australia to my Trustee upon trust, firstly, to pay thereout my just debts, funeral and testamentary expenses and all duties (if any) payable by reason of my death and then to give the balance of my estate in the following manner:
4.1)house at 40 Benara Road, Caversham with approximately 3 acres of land in front of it and towards Benara Road and at the back towards the vineyard and around the house to my said son IVAN JOSIP SARICH and his children in equal shares as tenants in common, and
4.2)the balance of the land at 40 Benara Road, Caversham, approximately 7 acres, to my said sons IVAN JOSIP SARICH, ANTHONY SARICH, my daughter-in-law BRENDA CAROL SARICH, and my grandchildren LUKA IVAN SARICH and NATALIJA MARY SARICH in equal shares as tenants in common.
The fifth defendant says clause 4 is void for two reasons. First, by its terms it is void for uncertainty. Second, it is void because it offends s 135 of the Planning and Development Act 2005 (WA) (PD Act). The plaintiff insofar as it is appropriate for him to do so agrees with the position of the fifth defendant. The sixth defendants say the clause is perfectly proper and workable. The other defendants agree with that position.
In my view the clause is not void for uncertainty. But I am satisfied it is void due to the operation of s 135 of the PD Act.
The property at 40 Benara Road, Caversham is one lot - it has not been subdivided. An aerial photograph of the property tendered at the hearing shows it to be in the shape of a battle axe. Benara Road itself runs east west. The block has a long narrow 'handle' running to the north. On that section of the property is located the house and other buildings. At the top of the 'handle' the boundary runs west and that in turn forms the southern boundary of the 'blade'. It is clear the blade is presently used for viticulture. There is only one access to the whole of the property and that is off Benara Road.
It seems clear what the deceased intended by clause 4 was that the 'handle' of the property would pass to the first defendant. In fact the area of land is not quite three acres - it is more like 2.5 acres. Leaving that discrepancy to one side the intent of the testator is clear. The remaining area - the 'blade' of the battle axe - is almost precisely seven acres and the deceased clearly wished that to pass to the five beneficiaries named in clause 4.2 of the Will.
There was no real dispute between the parties as to the proper approach to the interpretation of the Will. It is enough if I quote what was said by Dixon J in Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404:
To determine the meaning of the will, the language of the testator must be read in the sense which he himself appears to have attached to the expression he used, that is unless a rule of law gives some fixed operation. When the main purpose and intention of the testator are ascertained to the satisfaction of the court, if particular expressions are found in the will which are inconsistent with that intention, though not sufficient to control it, such expressions must be discarded or modified. The language of the testator should be moulded to carry into effect as far as possible the intention which, in the opinion of the court, the testator has, on the whole will, sufficiently declared (414).
The submissions of the fifth defendant which maintained clause 4 was uncertain really focused on the land upon which the house sits as being less than three acres. But really that was the only basis upon which it was said a finding of uncertainty should be made. Given how close the 'blade' section of the land is to seven acres it does not seem to me the understatement of the area is of itself sufficient to render the clause uncertain. In fact when the clause is read and account is taken of the aerial photograph, there really can be no doubt at all as to what the testator intended.
Section 135 of the PD Act is in the following terms:
No subdivision etc. without approval
(1)A person is not to -
(a)subdivide any lot; or
(b)amalgamate any lot with any other lot, whether within the same district or otherwise; or
(c)lay out, grant or convey a road,
without the approval of the Commission.
(2)A person who contravenes subsection (1) commits an offence.
(3)In this section -
road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).
This section replaced s 20(1)(a) of the Town Planning and Development Act 1928 (WA) (TPD Act). The old s 20(1)(a) of the TPD Act was in the following terms:
20.Plans of subdivision to be approved
(1)(a)Subject to section 68 of the Environmental Protection Act 1986, to this section and to section 20B, a person shall not, without the approval of the Commission, lay out, grant or convey a street, road or way, or either lease or grant a licence to use or occupy land for any term exceeding 10 years including any option to extend or renew the term or period, or lease and grant a licence to use or occupy land for terms in the aggregate exceeding 10 years, including any option to renew or extend the terms or periods, or sell land or grant any option of purchase of land, unless the land is dealt with by way of such lease, licence, sale or option of purchase as a lot or lots, or subdivide any lot, or amalgamate any lot with any other lot whether within the same district or otherwise; and the Commission may give its approval under this paragraph subject to conditions which shall be carried out before the approval becomes effective.
In Perpetual Trustees WA Ltd v Riverwest [2004] WASC 81 Barker J had cause to consider the effect of the former s 20(1) on a disposition of certain parts of an unsubdivided lot to particular beneficiaries. It was precisely the question that was raised here. His Honour dealt with the position this way:
There is, in my view, a certain consistency in these judicial pronouncements as to what the expression 'subdivide' means where it appears in s 20(1). While it might be argued that the expression 'subdivide any lot', where it appears in s 20(1)(a), is a reference to the formal act of subdivision ultimately effected under s 21(1) by a transfer or conveyance of a portion of land that is not presently a lot, and that this view is buttressed by the proscription in s 21(2) that the Registrar of Titles shall not receive any application from the registered proprietor of any land to create and register in the name of such registered proprietor a certificate of title for a portion of land not being the whole of one or more lots unless such application has been approved by the Commission, it seems to me that s 20(1)(a) is intended to have a broader application than that. It seems to me reasonable to accept, as Murray J did in Palamore (supra), that the expression 'subdivide any lot' is intended to prevent any physical or other act which has or is intended to have the practical effect of creating out of an existing lot two or more smaller defined portions of land.
In this case, at least, the deceased by her Will has purported to devise the legal and beneficial interest in portions of Lot 366 to named beneficiaries. The purported testamentary dispositions in question, in my view, cannot be equated with the licences considered in Palamore and Cobanov which were found not to offend s 20(1)(a). In those other cases, the transactions plainly proceeded on the basis that the lot in question could not be subdivided except with the approval of the Commission. In the present case, however, the plain intention of the Will is that each relevant beneficiary should have the bundle of rights that comes with legal and equitable ownership of land in the respective portions devised to them, to the exclusion of any other person. In my view, such a disposition, even by way of a testamentary disposition, purports to 'subdivide' Lot 366 (124 ‑ 125).
His Honour's decision was followed by Master Newnes in Bakranich v Robertson [2005] WASC 12. Once again the testator had purported to devise parts of an unsubdivided lot. Master Newnes followed the decision of Barker J in Riverwest and held the disposition offended s 20(1) of the TPD Act and was therefore void.
There have been a number of other decisions which, although not as directly on point as the two I have referred to above, support the conclusion reached by Barker J and Master Newnes. They are Love v Brien [2012] WASC 457 [58] (Beech J), Origin Energy Power Ltd and Commissioner of State Revenue [2007] WASAT 302 [135], Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232 and Landall Construction and Development Co Pty Ltd v Bogaers [1980] WAR 33 [49].
[It is perhaps worthy of note that in both the Riverwest decision and the Bakranich decision Barker J and Master Newnes found the relevant clauses void for uncertainty. But in both cases they considered the operation of s 20(1). In neither case could it be said the views expressed about that section were obiter. A reading of both decisions makes that plain].
It was the position of counsel for the sixth defendant that a proper reading of s 135 did not mean that a disposition of property in a Will such as that found in clause 4 purported to affect a subdivision. Counsel noted that the term 'subdivide' is not defined in the Act. Nor was it defined in the TPD Act. Most authorities picked up the definition provided by Murray J in Palamore Pty Ltd v Clode (Unreported, WASC, Library No 980599, 16 October 1998). Referring to the decision of Smith J in Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41 his Honour said:
The word 'subdivide' is an ordinary English word which in my view, in s 20(1)(a) bears it ordinary meaning. For the purpose of that section a lot is subdivided when the practical effect of what is done is to create out of the existing lot two or more similar defined proportions of land.
I do not think it is necessary that there be an act of transfer of any such smaller portion into separate ownership, although clearly the sale or other alienation of a defined portion of an existing lot will effectively subdivide it. What is necessary, it seems to me, is that, apart from the effect on the transaction of the contravention of s 20(1), there should be some legally effective or binding transaction or process which divides an existing lot into smaller units of land (12).
It was counsel's submission that definition of 'subdivide' is at odds with what was said by the Full Court in Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188. Counsel referred to what was said by Hale J (196) and Wickham J (198). Without quoting at length from these two judgments counsel pointed out each member of the Full Court referred to plans of subdivision not dispositions of property such as that affected by clause 4.
In my view, there is nothing in the conclusion reached by Murray J which is at odds with what was said by the majority in Lombardo. Rather Murray J's formulation seems eminently sensible and straightforward. I would reject this vital plank of the argument advanced on behalf of the sixth defendant.
The remainder of the argument picks up s 136, s 139 and s 140 of the PD Act. Essentially what is said is that a reading of those sections together with s 135 confirms the view s 135 is concerned only with the laying out of subdivisional plans not a purported disposition of part of the land.
As I indicated to counsel during the submissions if I thought the Riverwest decision was plainly wrong I would decline to follow it. In fact I am satisfied it embodies the proper construction of s 135. Moreover, the decision has now stood for over 13 years. Any decision to the contrary would have significant ramifications not just with respect to probate but with respect to property law generally. If the views of Barker J and Master Newnes are wrong then it is a matter which should be put right by the Court of Appeal.
The remaining question is whether clause 4 is effective as a residuary clause. In my view it is not. Subclause 4.2 does not refer to and include any real and personal estate of the deceased in Australia other than the land at 40 Benara Road, Caversham. By failing to refer to and include any other real and personal estate of the deceased the clause does not properly dispose of the residue of the estate. Therefore there is an intestacy in regard to other real and personal estate in Australia.
Based upon these reasons I indicated to the parties I would make orders in terms of the plaintiff's minute of proposed orders dated 25 July 2017 as follows:
1.A Direction pursuant to s 92 of the Trustees Act 1962 (WA) that the Plaintiff, as Executor of the Estate of his late father, is able to seek the construction of his late father's will.
2.A Declaration that the proper interpretation of clause 4 of the Will of the late IVAN BANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH late of Caversham, Western Australia, deceased, dated 28th April 2011 is void and of no effect as it purports to give land to different persons that is not subject to subdivision and is thus in breach of s 135 of the Planning and Development Act 2005 (WA) (formerly the now repealed s 20(1) of the Town Planning and Development Act 1928 (WA).
3.A Declaration that the intestacy provisions of the Administration Act 1903 (WA), s 14(1), Table, Item 5, apply to the property at 40 Banara Road, Caversham with the result that the testator's sons, IVAN JOSIP SARICH and ANTHONY SARICH share equally in the whole of that property.
4.A Declaration that BRENDA CAROL SARICH; LUKA IVAN SARICH; and NATALIJA MARY SARICH who were residuary beneficiaries in Clause 4.2 of the Will no longer share in the estate.
5.A Declaration that Clause 4.2 of the Will, the residuary clause, does not properly gift the residue.
6.A Declaration that the deceased died intestate in regard to any real and personal property in Australia not referred to in Clause 4 of the Will dated the dated 28th April 2011.
7.An Order that the Plaintiff's costs of and incidental to this Application be paid from the Estate on an indemnity basis.
I will hear from the parties as to the costs of those other than the plaintiff. Written submissions ought be filed by the parties within seven days.
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