Olsson v Dyson [1969] HCA 3

High Court of Australia Barwick C.J. Kitto, Menzies, Windeyer and Owen JJ. Olsson v Dyson [1969] HCA 3

ORDER Appeal allowed. Costs of both parties to be paid out of the deceased estate of Ernest Edward Dyson, those of the appellant as between solicitor and client. Order of the Supreme Court of South Australia in so far as it ordered that the moneys standing in court to the credit of an account entitled No. 1534 of 1965 Olsson v. Dyson—debt due from R.T.E. Constructions Pty. Ltd. be paid out of court to the respondent or to the solicitors upon production of the written authority be set aside and in lieu thereof order that the said moneys be paid out to the appellants or their solicitors upon production of their written authority.

Cur. adv. vult.

The following written judgments were delivered:—

1969, Feb. 28 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Kitto. I agree with him, and for the reasons he gives, that there was no assignment, legal or equitable, of a debt owing to the deceased by R. T. E. Constructions Limited (the debtor company). The terms of s. 15 of the Law of Property Act, 1936 S.A. were not fulfilled. There was no consideration to support an inchoate assignment. There is no equity to perfect an imperfect gift. A gift of a thing assignable at law is imperfect if it is not effective as a legal assignment. Nor is there any basis for regarding the deceased as having been at his death a trustee of a debt due to him by the debtor company. Consequently, the respondent could not succeed as the assignee or as the cestui que trust of the debt created by the loan by the deceased to the debtor company.

I further agree that this is not a case to which the rationale of such cases as Dillwyn v. Llewelyn [10] can be applied. Nor, in my opinion, after due consideration, can the deceased's evident desire be effectuated by the use of an estoppel. I also agree that there is no sound basis to infer a tripartite agreement, to which the deceased, his wife, and the debtor company were parties by which a novation of that kind took place. Thus the respondent cannot succeed as upon a promise made to her by the debtor company.