Antill-Pockley v Perpetual Trustee Co Ltd [1974] HCA 52

High Court of Australia McTiernan A.C.J. Gibbs and Stephen JJ. Antill-Pockley v Perpetual Trustee Co Ltd [1974] HCA 52

ORDER Appeal dismissed with costs. Order of the Supreme Court of New South Wales varied by setting aside the answer given to question (b) of the summons and matter remitted to the Supreme Court of New South Wales for the determination of question (b) in a suit to which Nancy Julia Watson has been added as a party.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 29 McTiernan A.C.J.

The first respondent (the Perpetual Trustee Company Limited) issued a summons out of the Supreme Court of New South Wales seeking "A determination of the question whether on the true construction of an Indenture of Settlement bearing date 31st July, 1924 and made between the late Frederick Edmund Sargood, of the one part and the plaintiff and the late George Washington Waddell of the other part and in the events which have happened, the corpus of the property subject to the said Indenture of Settlement: (a) is now vested beneficially in the defendant, Brian Edmund Antill-Pockley, or (b) is now, pursuant to provisions of cl. (b)(2) of the said Settlement, held on charitable trusts". The first respondent was the trustee of the settlement mentioned above and the appellant and the second respondent (the Attorney-General for New South Wales) were defendants to the summons.

The material clauses of the deed of settlement are as follows:

1. The Settlor hereby irrevocably directs and declares that as from the twenty-first day of July One thousand nine hundred and twenty four the Trustees shall stand possessed of the Trust Fund and the income therefrom upon the following trusts namely:

(b) After the death of the Settlor the Trustees shall stand possessed of the Trust Fund: