Saywell v Permanent Trustee Company of New South Wales Limited

The case of *Saywell v Permanent Trustee Company of New South Wales Limited* concerned an appeal to the High Court of Australia from the Supreme Court of New South Wales. The dispute arose from the interpretation of a testator's will and a subsequent codicil, specifically regarding the entitlement of a trustee company to charge commission for its services as executor and trustee. The testator had initially appointed his five sons as executors and trustees, explicitly prohibiting them from charging commission. However, by a codicil, he revoked their appointment and substituted the Permanent Trustee Company of New South Wales Limited as executor and trustee, confirming his will and earlier codicil in all other respects.

The central legal issue before the High Court was whether the Permanent Trustee Company of New South Wales Limited was entitled to charge commission on capital and income, notwithstanding the testator's express prohibition in his will. This required the court to determine whether the codicil, by appointing a trustee company, implicitly revoked the prohibition against commission, or whether the company's statutory rights under its enabling legislation superseded the testator's directive. The court also considered whether the prohibition in the will, which referred to "no executor or trustee," could be interpreted to apply to a corporate entity.

A majority of the High Court, comprising Gavan Duffy C.J., Dixon, and McTiernan JJ., held that the trustee company was entitled to charge commission. Their reasoning was that the codicil, by substituting a professional trustee company for the sons, evinced an intention that the company should act in its ordinary capacity, which included receiving remuneration in accordance with its statutory provisions. Dixon J. specifically noted that the testator, by appointing a company whose business it is to earn remuneration, raised a strong probability that he intended it to receive its ordinary fees, thus implying a revocation of the earlier prohibition. Starke and Evatt JJ. reached the same conclusion, with Evatt J. preferring to base his decision on the operation of the Permanent Trustee Company of New South Wales (Limited) Act 1888, as amended, which conferred a statutory right to commission that could not be overridden by the testator's will in this instance.

The High Court dismissed the appeal, upholding the decision of the Supreme Court of New South Wales. The Permanent Trustee Company of New South Wales Limited was therefore entitled to charge commission on capital and income in its capacity as executor and trustee, pursuant to the provisions of its governing legislation.