Forsyth v Perpetual Trustee Co (Ltd) [1951] HCA 74

High Court of Australia Dixon, Williams and Kitto JJ. Forsyth v Perpetual Trustee Co (Ltd) [1951] HCA 74

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 13 Dixon J.

I have had the advantage of reading the reasons of Williams J. and of Kitto J. and I agree in them. In my opinion the appeal should be dismissed.

Williams J.

This is an appeal from a decretal order made by the Supreme Court of New South Wales in its equitable jurisdiction (Roper C.J. in Eq.) declaring that upon the true construction of a certain indenture of settlement and in the events which have happened the respondent company Perpetual Trustee Co. (Ltd.) now holds and since 2nd August 1948 has held the investments the subject of the indenture for the respondents Burns Philp Trust Co. Ltd. and William Kelso as executors of the will of William Edgar Forsyth now deceased absolutely and that the plaintiff company does not now hold and has not since 2nd August 1948, held these investments for the appellants Walter Wright Forsyth, Mavis Baker and Lorna Madge Kelso in equal shares absolutely. The declaration relates to the construction of the ultimate trust contained in clause 5 of the indenture which is an indenture of settlement made on 4th October 1934 between Edgar William Forsyth as settlor and the respondent Perpetual Trustee Co. (Ltd.) as trustee. By a memorandum of transfer of the same date the settlor transferred to the company 5,000 shares of £1 each in Britannia Investment Co. Ltd. to hold upon the trusts of the indenture. By the indenture the settlor created trusts primarily for the benefit of his son William and his issue, if he left any issue him surviving, and secondly if those trusts failed for the benefit of William's two sisters Mavis and Lorna and his brother Walter.