Hendry v Perpetual Executors & Trustees Association of Australia Ltd [1961] HCA 44

High Court of Australia Fullagar, Taylor and Menzies JJ. Hendry v Perpetual Executors & Trustees Association of Australia Ltd [1961] HCA 44

ORDER Appeal dismissed with costs.

Cur. adv. vult.

Taylor J.

This case was heard before the late Fullagar J., Menzies J. and myself. It is an appeal from the Supreme Court of Victoria constituted by a single judge and as, under s. 19 of the Judiciary Act, for the hearing of such an appeal a Full Court may consist of two Justices, Menzies J. and I will proceed to deliver our judgment. I should add that Fullagar J. had expressed his concurrence with the reasons I am about to publish:—

Aug. 2 Taylor and Menzies JJ.

By deed dated 29th December 1911 a partnership for five years from 1st January 1912 was formed by the three children of Isabella Young Hendry deceased to whom she had given her estate—her sons George and John, and one of her daughters Catherine. The land given to them became partnership assets and other land was subsequently acquired by the partnership. The title to the partnership land was from time to time registered in the names of the existing partners as tenants in common in equal shares. The partnership continued after the expiration of the original term until the first change occurred on 16th July 1929 when John died intestate. At this time the affairs of Catherine Hendry, who had become insane in 1927, were being managed for her by the Master in Equity and that official represented Catherine in an arrangement whereby George and Catherine with the agreement of Isabella, who was the only other next-of-kin of John, took over his interest in the partnership in equal shares. Thereafter George and Catherine became partners in equal shares upon the terms of the original deed and the business was managed and controlled by George. George, with whose will and estate we are here concerned, died twenty-six years later on 11th September 1955 leaving a will dated 19th August 1929, i.e. a date shortly after the death of his brother John and when he was managing the partnership business. At all times the partnership assets included land and livestock and at no time did George himself own any land or livestock outside his interest in what belonged to the partnership.