Elder's Trustee & Executor Co Ltd v Higgins [1963] HCA 48

High Court of Australia Dixon C.J. McTiernan, Windeyer and Owen JJ. Elder's Trustee & Executor Co Ltd v Higgins [1963] HCA 48

ORDER Proposed order:—

(1) Declare that the appellant committed a breach of trust in failing to exercise for the benefit of the estate of Hugh William Desmond Higgins deceased the option it had to purchase from Blanche Isobel Mary Borrow and Mabel Janet Celia Cave their interests in the lands known as "Burnt Oak".

(2) Judgment of the Supreme Court varied accordingly.

Case remitted to the Supreme Court to ascertain what is the amount of the loss that by reason of the said breach of trust the appellant should make good to the estate of the testator.

The amount of such loss to be calculated by ascertaining the value as at 22nd December 1953 of two one third shares of a tenancy in common notionally then existing in "Burnt Oak" and deducting from such amount the sum of £4,278.

(3) Order that the amount of the loss so ascertained together with interest on such amount at five per cent. per annum from 22nd December 1953 until date of payment be paid by the appellant to the estate of the testator.

(4) Order that, unless the Supreme Court otherwise orders, the costs of ascertaining the amount of such loss be costs in the action to be paid by the appellant.

(5) The parties to have liberty to speak to the form of this order if they be so advised and for this purpose adjourn the further hearing of the appeal and the making of a final order until the next sittings of this Court in Adelaide.

(6) Appeal otherwise dismissed with costs.

(1) Declare that the appellant committed a breach of trust in failing to exercise for the benefit of the estate of Hugh William Desmond Higgins deceased the option it had to purchase from Blanche Isobel Mary Borrow and Mabel Janet Celia Cave their interests in the lands known as "Burnt Oak".