White v Arizon Pty Ltd - [2003] NSWSC 1051

CITATION: White v Arizon Pty Ltd [2003] NSWSC 1051

HEARING DATE(S): 6/11/03

JUDGMENT DATE:
6 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Judgment for the cross-claimant. Plaintiff's summons dismissed. Plaintiff to pay costs of the summons and of the cross-claim.

CATCHWORDS: WILLS [230]- Construction- Testatrix granted plaintiff permission to occupy- Whether a life-estate interest in the property- Mere right of residence is not an estate- Failure to perform the conditions attached to right- Trustee validly terminated plaintiff's right to occupy- Plaintiff was granted a joint right of residence with her sister, thus both of them required to be a party to the suit for it to succeed- Facts supported finding that plaintiff had ceased to occupy the premises.

LEGISLATION CITED: Real Property Act 1900, s 74L
Supreme Court Rules Part 8(3)

CASES CITED: Ellison v O'Neill (1968) 88 WN (NSW) (Pt 1) 213
Gill v Gill (1921) 21 SR (NSW) 400
Perpetual Trustees (WA) Ltd v Darvell [2001] WASC 123
Re Gibbons [1920] 1 Ch 372
Re Keenan (1913) 30 WN (NSW) 214
Stevenson v Myers (1929) 47 WN (NSW) 94

PARTIES :
Isobelle Victoria White (P)
Arizon Pty Limited (D)

FILE NUMBER(S): SC 5279/03

COUNSEL: W Washington (P)
A Lakeman (D)

SOLICITORS: Turnbull Bowles Lawyers Pty Limited (P)
David Roe (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 6 November 2003

5279/03 – WHITE v ARIZON PTY LTD

JUDGMENT

1 HIS HONOUR: The basic questions in this litigation arise out of the will of the late Margaret Annette White, who died on 10 April 2001. By her last will bearing date 28 February 1992 the testatrix made the following provisions:

I APPOINT

JAMES ALEXANDER DAVID WHITE

JEREMY NICHOLAS JOHN WHITE

I APPOINT

ARIZON PTY LIMITED (ACN 054 934 280)

…

MY EXECUTORS

ISOBELLE VICTORIA WHITE

EMMA JOANNE WHITE

(ii) On the termination of the interest…

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 White v Arizon Pty Ltd

Details

AGLC: White v Arizon Pty Ltd [2003] NSWSC 1051
Case: [2003] NSWSC 1051
Decision Date: 6 November 2003

CaseChat Overview and Summary

In the matter of White v Arizon Pty Ltd, the plaintiff sought to enforce a provision in the will of her mother, the testatrix, which granted her the right to occupy certain property. The defendant, Arizon Pty Ltd, was the trustee of the testatrix's estate and sought to terminate the plaintiff's right of residence. The dispute came before the court to determine the nature of the right granted by the will and whether the conditions attached to it had been met. The court was required to decide whether the plaintiff had been granted a life-estate interest in the property or merely a right of residence. It also needed to determine whether the conditions attached to the right of residence had been met, and if not, whether the trustee was justified in terminating the plaintiff's right of residence.

The court found that the testatrix had granted the plaintiff a mere right of residence, not a life-estate interest, in the property. It held that the conditions attached to the right of residence had not been met, and therefore the trustee was justified in terminating the plaintiff's right of residence. The court further found that the plaintiff had ceased to occupy the premises, and that both the plaintiff and her sister, who was also granted a joint right of residence, were required to be parties to the suit for it to succeed. The court held that the facts supported the finding that the plaintiff had ceased to occupy the premises.

The court ordered that the defendant was entitled to terminate the plaintiff's right of residence and that the plaintiff had no further interest in the property. It further ordered that the plaintiff pay the defendant's costs of the proceedings. The court also held that the plaintiff's sister was not a party to the suit and that the suit should be dismissed as against her. The court's decision was based on a careful analysis of the language of the will and the evidence presented in the case. The court found that the testatrix had not granted the plaintiff a life-estate interest in the property, but rather a mere right of residence, which was subject to certain conditions. The court held that the plaintiff had failed to meet these conditions, and that the trustee was justified in terminating her right of residence.

Orders