Elder's Trustee & Executor Co Ltd v Commissioner of Taxation (Cth) [1966] HCA 73

High Court of Australia Barwick C.J. Taylor and Windeyer JJ. Elder's Trustee & Executor Co Ltd v Commissioner of Taxation (Cth) [1966] HCA 73

ORDER Questions in the case stated answered as follows:

(1) Yes.

(2) Yes.

(3) Unnecessary to answer.

Costs of the case stated reserved for the decision of the Justice disposing of the appeal.

Cur. adv. vult.

The Court delivered the following written judgment:

Nov. 29 Barwick C.J., Taylor and Windeyer JJ.

It appears from the case stated that on 14th November 1952 the testator by memorandum of transfer, in the form prescribed by the Real Property Act, transferred to himself and to his wife Violet Alice Morphett an estate in certain land for the joint lives of himself and his said wife and for the life of the survivor of them and to his son Hurtle Cummins Morphett an estate in fee simple in remainder expectant upon the determination of the preceding life interests. The transfer was expressed to be in consideration of his natural love and affection for his wife and his son and the memorandum of transfer was duly registered under the Act.

Subsequently, in 1956, portion of the land was transferred by these three parties to the United Evangelical Lutheran Church in Australia and during the year 1962 a survey was made of the balance of the land delineating approximately one and three-quarter acres of the said land comprising the old family home and surrounding garden together with an appropriate right of way so that the home could be used and occupied separately from the balance of the land. The portion of one and three-quarter acres is referred to in the case stated as the "homestead area" and the portion not so delineated is referred to as the "vacant land".

On 7th January 1963 the testator and his wife entered into an agreement with H.C.M. Investments Pty. Limited (the company) to sell to it the whole of their freehold estates for their joint lives and the life of the survivor in the whole of the land the subject of the survey except the homestead area and on 20th June 1963 the testator executed a memorandum of transfer to the company. The memorandum of transfer in respect of the interest of the testator's wife—she having become a protected person pursuant to the Aged and Infirm Persons' Property Act, 1940-1950 S.A.—was executed by her joint managers on 2nd August 1963. However, on 10th September 1963 the testator died not having received any part of the purchase money payable to him pursuant to the contract of sale. No part of the purchase price payable to the testator's wife was paid to her or her joint managers before the testator's death but, subsequently to that event, on 9th December 1963 both memoranda of transfer were duly registered.