All Subscribed Australian Cases Sources2012-10!26!11-57

7/28/2019 All Subscribed Australian Cases Sources2012-10!26!11-57

1/29

Page 1


2/29

Page 2

1 of 10 DOCUMENTS: CaseBase Cases

Registrar of Titles v Crowle

(1947) 75 CLR 191; [1947] ALR 362; (1947) 21 ALJR 208; BC4700400

Court: HCA

Judges: Latham CJ, Rich, Dixon and McTiernan JJ

Judgment Date: 23/6/1947

Catchwords & Digest

Real property -- Land registration -- Error in register -- Faulty construction of land settlement

Appeal against order and declarations made by Supreme Court of Queensland.

Settlement of land made to life tenant and children.

Settlor died and trustee applied to bring land under (QLD) Real Property Act 1861.

Master of Titles construed application as bargain and sale, vesting fee simple in trustee.

Trustee transferred interest to life tenant who mortgaged land.Life tenant became insolvent.

Children brought action as remaindermen.Order made that register book be rectified to show life tenant entitled to life estate.

Declaration made that children entitled in remainder and registered life tenant bound to indemnify them

against encumbrances.

Indemnity not given and some children parted with their interest in land.

Registrar appealed against recovery from Assurance Fund of amount required to clear mortgage.Whether children entitled to recover indemnity.

Held: Appeal dismissed.

Children, as remaindermen, entitled to recover present value of portion which passed to trustee.

Children also entitled to recover benefit of indemnity to full amount of mortgage.

Fact that some children had parted with interests since right to indemnity arose immaterial since right toindemnity was compensation for loss of interest.

Litigation History

Annotations: All Cases Sort by: Judgment Date (Latest First)

Annotation Case Name Citations Court Date Signal

AffirmedFinucane v Registrar of Titles

(No2)[1947] St R Qd 26 QSC 21/10/1946

Cases referring to this case

Annotations: All CasesSort by: Judgment Date (Latest First)


CitedSixty-Fourth Throne Pty Ltd v

Macquarie Bank

(1996) 130 FLR 411; (1996)

14 ACLC 670; (1996) V

ConvR 54-546; BC9600719

VSC15/3/19

96

Cited Titles, Registrar of v Keddell (1993) Q ConvR 54-455 QCA25/10/1

993


3/29

Page 3

Distinguishe

d/ Followed/

Cited

Registrar-General v Behn[1980] 1 NSWLR 589;

(1980) NSW ConvR 55-002

NSW

CA

23/6/19

80

Cases considered by this case

Annotations: All Cases Sort by: Judgment Date (Latest First)Annotation Case Name Citations Court Date Signal

Followed Spencer v Registrar of Titles [1908] AC 235 UKPC 24/1/1908

Legislation considered by this case

Legislation Name & Jurisdiction Provisions

Real Property Act 1861 (Qld) s 126, s 127, s 128, s 44

Real Property Act 1877 (Qld) s 29


4/29

Page 4


5/29

Page 5


Ham, In re; Templeton v Ham (No 2)

[1939] VLR 19; [1939] ALR 19

Court: VSC

Judges: Gavan Duffy J





Applied Etches v Etches (1856) 3 Drew 441 - 31/1/1856

Words & Phrases

to such children & the issue of any children predeceasing life tenant -- until the youngest of the said

children shall attain the age of 21 yrs


6/29

Page 6


7/29

Page 7


Austin v Abigail

(1933) 49 CLR 177; (1933) 7 ALJR 95; [1933] HCA 24; BC3390115

Court: HCA

Judges: Rich, Starke, Dixon, Evatt and McTiernan, JJ


Catchwords & Digest

Succession -- Intestacy -- Life tenant -- Revocation of gift

Appeal against decision of New South Wales Supreme Court no part of estate of testator passed on

intestacy.

By his will testator made gift to his wife, his wife's sister and his son as life tenants in equal shares.

Will provided that after death of wife and wife's sister interest payable to each of them to be paid to

children of testator's son.

By his codicil testator revoked gift to son but made no provision in its place.

Revocation of gift to son did not operate to augment shares given to wife and wife's sister because of

operation of (NSW) Conveyancing Act 1919 s 36B.

Appeal dismissed.


Annotations: All CasesSort by: Judgment Date (Latest First)Annotation Case Name Citations Court Date Signal

Cited AAT Case V4 (1987) 88 ATC 123AAT

A

11/12/1

987

Applied Bennett, In re v Bennett [1975] Tas SR 1TASS

C

3/2/197

5

ApprovedHowes (decd), Re; Quinton v

Howes[1971] 2 NSWLR 387

NSW

SC

25/10/1

971




Cited Tompkins v Simmons

(1931) 44 CLR 546;

(1931) 5 ALJR 39;[1931] HCA 8;BC3190101

HCA 1/4/1931

Cited Buckley's Trusts, In re (1883) 22 Ch D 583EWHCC

h19/1/1883



Conveyancing Act 1919 (NSW) s 36B


8/29

Page 8

Trustee Act 1925 (NSW) s 43

Words & Phrases

realise the whole estate


9/29

Page 9


10/29

Page 10


Executor Trustee & Agency Co of SA Ltd v Federal Commissioner of Taxation

(1932) 48 CLR 26; [1933] ALR 113; (1932) 6 ALJR 144b; (1932) 2 ATD 35; BC3200057

Court: HCA

Judges: Gavan Duffy CJ, Rich, Starke, Dixon, Evatt and McTiernan JJ


Catchwords & Digest

Taxation and revenue -- Assessment of income -- Trustees and taxation -- Beneficiary presently

entitled to income

Appeal against decision of Board of Review.

Taxpayer was trustee of estate.

Deceased bequeathed property to trustees to stand possessed of six equal parts for named persons for life

with remainder for named persons subject to various conditions.

Three tenants for life died.

Three shares vested in interest, although period for distribution of corpus not yet arrived.Estate included freehold hotel.

Prospective tenant offered premium and weekly rental.

Trustee applied to Supreme Court for power to accept offer, notwithstanding that it involved taking

premium.

Court authorised trustee but directed premium be treated as rent.Trustee did not pay any of premium to beneficiaries or include sum in assessable income for year.

Commissioner of Taxation apportioned sum and treated it as properly payable to beneficiaries during that

year.

Commissioner assessed trustees for balance of sum.

Trustee did not carry on a business and was not a taxpayer in any previous year.Whether 'presently entitled and actual receipt thereof' in the (CTH) Income Tax Assessment Act 1922 s

31(b), 'and' should be read as 'or'.

Whether appellant trustee assessable and chargeable with tax in respect of sum or any, part of sum.

Whether premium was income.

Whether, if appellant liable for tax, tax should be rate applicable to average taxable income over preceding

five years.

Held, answering questions to case stated:

(i) (Per Rich, Dixon and McTiernan JJ): Semble, in the phrase 'presently entitled and actual receipt thereof'in the (CTH) Income Tax Assessment Act 1922 s 31(b), the word 'and' should be read as 'or'.

(ii) (Evatt J Dissenting): When a trustee received certain income upon trust, partly for one set of

beneficiaries who were presently entitled thereto and partly for another set who were contingently entitled

thereto, the taxpayer could only be assessed in respect of that part to which no beneficiary was presently

entitled.

(iii) (Per Rich, Dixon and McTiernan JJ): A premium was taken upon the grant of a lease by trustees of an

estate, a share in which was held upon trusts limited in succession to tenant for life and remainderman.

(iv) The premium was apportionable over the duration of the lease and the life tenant could not be said tobe presently entitled to it.


11/29

Page 11




Considered

Leighton v Commissioner of

Taxation

(2010) 80 ATR 567; [2010]

FCA 1086; BC201007337 FCA

6/10/20

10

CitedCP1 Ltd and Commissioner of

State Revenue, Re

(2010) 78 ATR 401; [2010]

VCAT 34

VCA

T

14/1/20

10

ConsideredLend Lease Custodian Pty Ltd v

Deputy Commissioner of Taxation

2007 ATC 4041; (2006) 65

ATR 455; [2006] FCA 1790;

BC200610929

FCA21/12/2

006

Distinguishe

d

Trust Co of Australia Ltd v

Commissioner of State Revenue

(2003) 197 ALR 297;

(2003) 77 ALJR 1019;

(2003) 24(8) Leg Rep 11;

2003 ATC 4427; (2003) 52

ATR 665; [2003] HCA 23;

BC200301934

HCA1/5/200

3

Cited/

Distinguished

Zeta Force Pty Ltd vCommissioner of Taxation (Cth)

(1998) 84 FCR 70; (1998)

98 ATC 4681; (1998) 39ATR 277; BC9802681

FCA 29/6/1998

Cited AAT Case 47/95; No 10,331(1995) 95 ATC 404; (1995)

31 ATR 1146

AAT

A

2/8/199

5

Cited Burke v Gillett & Torney

[1994] ANZ ConvR 542;

(1994) V ConvR 54-507;

BC9401174

VSC14/7/19

94

ConsideredNational Australia Bank Ltd v

Federal Commissioner of Taxation

(1994) 29(1) AustLawyer49f; (1993) 46 FCR 252;

(1993) 123 ALR 349;

(1993) 93 ATC 4914; (1993)

26 ATR 503; BC9305113

FCA4/11/19

93

Cited

Melbourne City Corp v

Commissioner of Land Tax (Vic)

(1991) 91 ATC 5043; (1991)

22 ATR 805; BC9100577 VSC

5/12/19

91

Cited/

Applied

Taxation, Federal Commissioner

of v Harmer

(1990) 24 FCR 237; (1990)

94 ALR 541; (1990) 90 ATC4672; (1990) 21 ATR 623

FCA25/7/19

90

Cited AAT Case 4645; AAT Case V150(1988) 88 ATC 948; (1988)

19 ATR 3940

AAT

A

27/9/19

88

Cited Taxation Case M18 (1980) 80 ATC 103 TBR 21/3/19

80

Cited Taxation Case B24 (1970) 70 ATC 111 TBR 7/5/197

0

ConsideredTaylor v Federal Commissioner of

Taxation

(1970) 119 CLR 444; (1970)44 ALJR 148; (1970) 70

ATC 4026; (1970) 1 ATR

582; BC7000170

HCA8/4/197

0

Referred to Case 63 (1954) 4 CTBR(NS) Case63CTB

R

22/3/19

54

Cited Taxes, Commissioner of v Luttrell(1949) 4 AITR 310; [1949]

NZLR 823

NZC

A

30/5/19

49

Referred to Federal Commissioner of Taxation

v Whiting

(1943) 68 CLR 199; [1943]

ALR 186; (1943) 17 ALJR

39; (1943) 2 AITR 421;

(1943) 7 ATD 179;

HCA 19/3/19

43


12/29

Page 12

BC4300033

CitedResch v Federal Commissioner of

Taxation

(1942) 66 CLR 198; [1942]ALR 73; (1942) 15 ALJR

359; (1942) 2 AITR 231;

(1942) 6 ATD 203;

BC4200003

HCA4/2/194

2

Journal articles referring to this case

Article Name Citations Signal

Formulating a Taxpayer's Charter of Rights: Setting the Ground Rules (1996) 25 ATRev 97




ConsideredHowey v FederalCommissioner of Taxation

(1930) 44 CLR 289;

[1931] ALR 7; (1930) 4ALJR 307a; (1930) 1

ATD 139; BC3000003

HCA 8/12/1930

ConsideredFederal Commissioner of

Taxation v Higgins

(1930) 44 CLR 297;

(1930) 4 ALJR 340;

BC3090113

HCA 3/12/1930

ConsideredGolden Horseshoe Estates

Company Ltd v R[1911] AC 480 UKPC 19/5/1911

ConsideredNew, Re; In re Leavers; In re

Morley[1901] 2 Ch 534

EWCAC

iv22/7/1901

Considered Brigstocke v Brigstocke (1878) 8 Ch D 357EWCAC

iv27/3/1878



Income Tax Assessment Act 1922 (Cth) s 16(d), s 31(1), s 13, s 31, s 31(2)(b)

Words & Phrases

presently entitled and actual receipt thereof


13/29

Page 13


14/29

Page 14


Abbott v Union Trustee Co of Australia Ltd

(1928) 41 CLR 375; [1929] ALR 126; (1928) 2 ALJR 328; (1928) 29 SR (NSW) 17; (1928) 46 WN (NSW)

2a; BC2800031

Court: HCA

Judges: Knox CJ, Isaacs, Higgins, Gavan Duffy & Starke JJ


Catchwords & Digest

Succession -- Wills and codicils -- Construction and effect -- Option to purchase

Appeal against decision of New South Wales Supreme Court.

Testator's will left appellant son option to purchase widow life tenant's residuary estate.

If appellant failed to exercise option in six months of widow's death, option passed to second son.

Second son died in lifetime of widow.

Respondent administrator of second son's estate claimed benefit of option.

(i) Whether executors of donee's estate entitled to exercise option to purchase.(ii) Whether option of purchase passed to executors upon death of beneficiary.

Held, allowing the appeal (5:0):

(i) The language of the will and codicil indicated the option given to the appellant was a personal option

exercisable only in his lifetime and his personal representatives were not entitled to exercise it.

(ii) Per Higgins J: The option of purchase given by will was prima facie personal to the donee and does not

pass to the donee's executors upon death.

Litigation History



ReversedPerpetual Trustee Co v Union

Trustee Co

(1927) 28 SR (NSW)

222; (1927) 45 WN

(NSW) 30

NSWSC 21/12/1927




Cited Sharp v Union Trustee Co ofAustralia Ltd

(1944) 69 CLR 539; (1944)18 ALJR 353; BC4490106

HCA 4/12/1944

Journal articles referring to this case

Article Name Citations Signal

Construction of Wills in Australia 2007 (book) ISBN: 9780409320954


15/29

Page 15


16/29

Page 16


Knowles & Haslem v Ballarat Trustees

[1916] VLR 594; (1916) 22 CLR 212; (1916) 22 ALR 431; [1916] HCA 57; BC1600017

Court: HCA

Judges: Griffith CJ, Barton, Isaacs, Gavan Duffy & Rich JJ


Catchwords & Digest

Succession -- Wills and codicils -- Distribution of income from shares in a company -- Life tenants

and remaindermen

Two appeals heard together from the judgment of the Supreme Court of Victoria for the determination of

questions arising in the administration of an estate.

Testator by will gave to the appellant the net income from 1000 shares in a company with the remainder to

his children.

Company paid certain sums per share as "a distribution of assets" by the Company to the trustee.

Trustees sought determination by the Supreme Court of their right to moneys paid by the limited companyto the trustee in respect of shares in the company forming part of the estate.

Supreme Court held that as between life tenants and remaindermen the sums were to be treated as corpus.

Tenant for life of 1000 shares and beneficiaries appealed to the High Court.

Whether the two sums paid to and received by the respondent trustee as capital of the company should be

held by the trustee as corpus for the benefit of the sons of the deceased.

Whether trustee was required to give the sums received to the life tenant or hold them for the

remainderman.

Held, dismissing the appeal:Per Griffith CJ, Barton, Gavan Duffy and Rich JJ (Isaacs J dissenting): As between tenants for life and

remaindermen, the two distributions were to be treated as corpus of the estate.

Litigation History



Affirmed

Hassell (decd), In re; Ballarat

Trustees Executors & Agency

Co Ltd v Haslem

[1916] VLR 29; (1915)

22 ALR 1; (1915) 37

ALT 139

VSC 1/12/1915




Cited Taxation Case G14 (1975) 75 ATC 72 TBR 26/2/19

75

Referred to Boan (decd), In re Estate of;Commissioner of Stamps v

Executors of the Will of Boan

(1946) 48 WALR 5 WASC

1/4/1946


17/29

Page 17

(decd)

Referred toCommissioner of Taxation (NSW)

v Stevenson

(1937) 59 CLR 80; (1937)11 ALJR 353; (1937) 55

WN (NSW) 40a; (1937) 1

AITR 211; (1937) 4 ATD

415

HCA14/12/1

937

Referred toStevenson v Commissioner of

Taxation

(1936) 37 SR (NSW) 84;(1936) 54 WN (NSW) 3;

(1936) 4 ATD 150

NSW

SC

15/12/1

936

Referred to Hill v Permanent Trustee Co Ltd(1933) 33 SR (NSW) 527;(1933) 50 WN (NSW) 209

NSWSC

18/10/1933

Disapproved Hill v Permanent Trustee Co Ltd

[1930] AC 720; (1930) 4

ALJR 342; (1930) 31 SR

(NSW) 32; [1930] All ER

Rep 87

UKP

C

29/7/19

30

AppliedHill, In re; Permanent Trustee Co

v Hill

(1928) 29 SR (NSW) 53;

(1928) 46 WN (NSW) 10

NSW

SC

16/11/1

928

AppliedThornley (decd), In re; Boyd v

Thornley

[1925] VLR 569; (1925) 47

ALT 52VSC

9/6/192

5

Referred toPerpetual Trustee Co Ltd v

Champion

(1923) 23 SR (NSW) 544;

(1923) 40 WN (NSW) 119

NSW

SC

14/9/19

23

ConsideredWebb v Commissioner of

Taxation

(1922) 30 CLR 450; (1922)

28 ALR 284; BC2200023HCA

19/6/19

22

FollowedPerpetual Trustee Co Ltd v

Champion

(1921) 21 SR (NSW) 501;

(1921) 38 WN (NSW) 162

NSW

SC

5/8/192

1

Considered Drew v Vickery(1919) 19 SR (NSW) 245;

(1919) 36 WN (NSW) 100

NSW

SC

7/8/191

9

Followed/

AppliedMacansh v Fisher

(1917) 18 SR (NSW) 14;

(1917) 34 WN (NSW) 172HCA

4/9/191

7

Considered/

Followed

Fisher v Fisher

(1917) 23 CLR 337; (1917)

23 ALR 318; [1917] HCA

42; BC1700027

HCA4/9/191

7

Disapproved Hill v Permanent Trustee Co Ltd (1930) 48 WN (NSW) 13UKP

C




ConsideredArmitage, In re; Armitage v

Garnett[1893] 3 Ch 337

EWCAC

iv4/8/1893

Distinguishe

dBouch v Sproule

(1887) 12 App Cas 385;

[1886-90] All ER Rep

319

UKHL 13/6/1887

Words & Phrases

distribution of assets -- on account of the ultimate realisation of assets


18/29

Page 18


19/29

Page 19


Mitchell v Hart

(1914) 19 CLR 33; (1914) 21 ALR 52; [1914] HCA 72; BC1400005

Court: HCA

Judges: Griffith CJ, Isaacs and Gavan Duffy JJ


Catchwords & Digest

Trusts -- Beneficiaries -- Trust assets -- Beneficiary's interest in trust assets

Appeal against decision of New South Wales Supreme Court.

Respondent trustees under will held company shares on trust for respondent tenants for life with remainders

over.

Company issued new shares and offered to shareholders.

Premiums from share sales distributed amongst shareholders.

Proportion of company reserves resolved to be distributed as bonus.

Shareholders could elect to pay for shares out of bonus.

Respondent trustees accepted new shares and paid out of bonus.

Whether new shares formed part of trust estate's capital.Whetherlife tenants entitled to charge on shares if shares formed part of trust estate's capital.

Held, dismissing the appeal (2:1):

(i) The new shares formed part of the capital of the trust estate.

(ii) Per Isaacs and Gavan Duffy JJ: The life tenants were entitled to a

charge on each of the shares amounting to the bonus applied in payment of such

shares, despite forming part of the capital of the trust estate, consideration

for the practical interrelationship between increasing capital accumulation




Referred to

Sears (decd), In re; Perpetual

Executors Trustees & Agency Co

Ltd v Chisholm

(1951) 53 WALR 57WAS

C

24/5/19

51

Applied Guazzini v Pateson(1923) 24 SR (NSW) 40;

(1923) 40 WN (NSW) 142

NSW

SC

28/9/19

23Referred to Macansh v Fisher

(1916) 16 SR (NSW) 636;

(1916) 34 WN (NSW) 25

NSW

SC

8/10/19

16

Discussed

Hassell (decd), In re; Ballarat

Trustees Executors & Agency Co

Ltd v Haslem

[1916] VLR 29; (1915) 22

ALR 1; (1915) 37 ALT 139VSC

1/12/19

15


20/29

Page 20


21/29

Page 21


Holt v Deputy Federal Commissioner of Land Tax

(1914) 17 CLR 720; (1914) 20 ALR 322; [1914] HCA 26; BC1400035

Court: HCA

Judges: Griffith CJ, Barton, Isaacs and Powers JJ


Catchwords & Digest

Taxation and revenue -- Land tax -- Assessment -- Legal life tenant

Appeal against assessment of land tax.

Appellant tenant for life of land under testator's will.

Testator still registered proprietor.

Testator devised land to trustees for appellant's father with remainder for appellant.

Appellant's father died.

Appellant and father both not registered as proprietor of life estate.

Appellant assessed for land tax as equitable tenant for life.

Whether appellant entitled to be assessed as legal tenant for life.

Whether statutory prohibition against instruments passing estates under statute applied to estate passing bylaw.

Held, allowing the appeal (4:0):

(i) Under the testator's will, the appellant had a legal estate in the land, and was entitled to be registered

under (NSW) Real Property Act 1900 as the proprietor of a life estate and to be assessed as legal tenant for

life under (CTH) Land Tax Assessment Act 1910-1911 s 25.

(ii) Per Isaacs J: The prohibition in (NSW) Real Property Act 1900 against an

instrument passing an estate in land under that Act does not apply to the case

of an event, not being an instrument, having a legal operation, and an estate




Cited Warren v Dickson[2011] NSWSC 79;

BC201101785

NSW

SC

25/2/20

11

Cited Holdway v Arcuri Lawyers (No 2)[2007] QSC 378;

BC200711098

QSC18/12/2

007

Applied Bhana v Bhana

(2002) 10 BPR 19,545;

[2002] NSWSC 117;

BC200200581

NSW

SC

1/3/200

2

CitedAustralia & New Zealand

Banking Group Ltd v Barns

(1994) 13 ACSR 592;

(1994) 6 BPR 13,739;

[1995] ANZ ConvR 123;

BC9402514

NSW

SC

3/5/199

4

Referred to/

Cited

Dixon v Commissioner of Stamp

Duties (NSW)

(1985) 3 NSWLR 347;

(1985) 85 ATC 4718; (1985)

NSW

SC

22/11/1

985


22/29

Page 22

17 ATR 58

Considered Spark v Meers [1971] 2 NSWLR 1NSWSC

26/8/1971

Referred to Lindsay v Murphy(1967) 90 WN (Pt 1) (NSW)

410

NSW

DC

14/12/1

967



Land Tax Assessment Act 1910 s 25

Real Property Act 1900 (NSW) s 39, s 41, s 42

Words & Phrases

legal tenant for life


23/29

Page 23


24/29

Page 24


Hedderwick v Federal Commissioner of Land Tax

[1913] VLR 450b; (1913) 16 CLR 27; (1913) 19 ALR 112; [1913] HCA 11; BC1300045

Court: HCA

Judges: Griffith CJ, Barton, Isaacs & Gavan Duffy JJ


Catchwords & Digest

Taxation and revenue -- Land tax -- Retrospective law -- Amendment to Land Tax Act affecting

assessments for life tenants

Case stated for the opinion of the High Court.

Testator devised to appellant trustees all his real estate upon trusts for conversion and pending conversion

to pay the income of his widow for life.

Trustees were directed to hold property upon trust for the testator's children in equal shares after the death

of the wife.

Trustees filed a tax return pursuant to (CTH) Land Tax Assessment Act 1910 of all land held by them.Assessment was made pursuant to the amended (CTH) Land Tax Assessment Act 1911.

Before the amendment of (CTH) Land Tax Assessment Act 1911 s 25, an equitable tenant for life without

power of sale was entitled to be assessed as if they were a legal tenant for life.

Trustees objected to the manner by which the unimproved value of the land had been calculated.

Whether the trustees were entitled to claim the benefit of (CTH) Land Tax Assessment Act 1911 s 25 as

amended.

Rule as to retrospective legislation pending litigation considered.

Held, dismissing the appeal:(Per Griffith CJ, Barton and Duffy JJ. Isaacs J dissenting): In the assessment of land tax for the financial

year beginning 1 July 1911, an equitable tenant for life of land, without power to sell under the will of atestator who died before 1 July 1910, was not entitled to be assessed as if he were a legal tenant for life

without power to sell.




CitedWilson v First County Trust Ltd

(No 2)

[2003] All ER (D) 187 (Jul);

[2003] UKHL 40; [2004] 1AC 816; [2003] 4 All ER

97; [2003] 3 WLR 568;

[2003] 2 All ER (Comm)491

UKH

L

10/7/20

03

Referred to Harlow v Horton [1975] Qd R 147 QSC22/7/19

75



25/29

Page 25


Land Tax Assessment Act 1910 (Cth) s 25, s 3, s 33, s 35

Land Tax Assessment Act 1911 s 13, s 3

Land Tax Assessment Act 1912 s 12, s 7


26/29

Page 26


27/29

Page 27


Cock v Aitken (No 2)

[1913] VLR 301; (1912) 15 CLR 373; (1912) 18 ALR 576; [1912] HCA 70; BC1200017

Court: HCA

Judges: Griffith CJ, Barton and Isaacs JJ


Catchwords & Digest

Practice and procedure -- Costs -- Costs order -- Variation

Appeal against decision of Full Court of Victoria.

Appellant life tenant of residue of income of estate.

Respondent trustees of estate and children.

Parties to original suit involved appellant, respondent and trustees of third party's will.

Third party trustees faced complaint of personal misconduct.

Third party trustees granted appeal from High Court to Privy Council concerning respondent's matters, not

own.Third party trustees' appeal dismissed with costs.

Privy Council reversed High Court order.

Respondent in interim paid and incurred costs in obedience with High Court order.

Whether costs of litigation should be borne by life estate or charged to income or to corpus.

Held, allowing the appeal:

(i) The whole of the costs should be paid out of corpus, except such part of the life tenant's costs of the

appeal to the High Court as the trustees of the estate might think were reasonably attributable to charge

against the third party trustees, and the charge against the third party trustees should be recouped out ofincome by the consent of the assignees of his interest.

Litigation History



Varied Aitken v Cock

[1912] VLR 433;

(1912) 18 ALR 366; 34

ALT 81

VSC 12/8/1912

Cases referring to this caseAnnotations: All CasesSort by: Judgment Date (Latest First)


Cited Frost v Fallon[2011] NSWSC 591;

BC201104266

NSW

SC

16/6/20

11


28/29


29/29

---- End of Request ----

Download Request: Tagged Documents: 91-100

Time Of Request: Friday, October 26, 2012 11:55:49