MCGRATH V. PERMANENT TRUSTEE COMPANY AND ANOTHER

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IN THE HIGH COURT OF AUSTRALIA

.-PEBMANENT. TRUSTEE COMPANY AND ANOTHER

REASONS FOR JUDGMENT

Oral Judgment delivered at_.. SYDNEY on_WEDNESDAY, 11th DECEMBER 1963__

'A.C. Books, Government Priter, Melbourne 0.763960

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PE NI_TRUSTEE COMP, AND ANOTHER

JUDGMENT JUDGMENT OF THE COURT CORAL DELIVERED SY KITTO J.

CORAM: KITTO J MENZIES J.

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PERMANENT TRUSTEE COMPANY AND ANOTHER

This is an appeal from a decretal order made by the Chief Judge in Equity, Mr. Justice McLelland, in proceedings which procedurally were perhaps not entirely apt for the solution of the problems to which they were directed, but everything was done by consent and there seems to be no reason to depart from the course that the parties followed.

His Honour answered the first question that was put to him by declaring that in the events which had happened and upon the true construction of the deed, the personalty referred to in the deed was, immediately prior to the death of the deceased, assets of the partnership referred to in the deed. The reference should no doubt have been not to the personalty referred to in the deed

but to the personalty utilized in the partnership business

at the time of the death, and the declaration should be

varied accordingly.

No further question arises concerning the personalty.

There has been argument as to the construction of the deed and its effect in regard to the lands that are referred to in the schedule to the deed. There is really no room for argument. His Honour held that the lands became partnership assets and that they were assets in which the partners were interested in equal shares, and referred, in support of that conclusion, to s. 24 of the Partnership Act. His Honour's conclusion in our opinion was obviously right. The declaration made follows the question asked in the originating summons and is not