Oliver v Oliver [1958] HCA 28

High Court of Australia Dixon C.J. McTiernan and Taylor JJ. Oliver v Oliver [1958] HCA 28

ORDER Appeal allowed. Order of the Supreme Court of Victoria discharged. In lieu thereof declare in answer to the questions in the summons that under the trusts of the will with respect to the testator's Dairy Creek property the plaintiff Walter Charles Oliver became entitled to acquire the said property at his election exercisable within a reasonable time at the price of £6 an acre payable to the defendant Norman Joseph Oliver and that the notice dated 4th January 1957 amounts to a sufficient exercise of his said election and subject to his paying or tendering the said price to the said defendant within a reasonable time he is entitled to an equitable estate in fee simple in the said property. Costs of each party to be paid out of the estate of the testator.

Cur. adv. vult.

The following written judgments were delivered:—

June 26 Dixon C.J.

This appeal concerns a trust upon which a country property at Yea in Victoria called Dairy Creek was devised by a testator who died on 21st June 1956 and who is described as a grazier. Among other children the testator left him surviving two sons, Walter Charles and Norman. By a very brief will he appointed these sons his executors and trustees and devised and bequeathed to them his real and personal property upon certain trusts. After payment of liabilities they were first to pay each of the other children of the testator £200. The will proceeded,—"and to hold the rest and residue of my estate Upon Trust as to my house property comprising 544 acres situate on the Yea-Whittlesea Road for my son Walter Charles Oliver and as to my Dairy Creek property for my son Norman but my son Walter Charles shall have the right to purchase such Dairy Creek property from my son Norman at £6 per acre if he so desires and as to the rest and residue of my property for my son Walter Charles Oliver absolutely."