DURBIN v PERPETUAL TRUSTEE COMPANY LTDIN THE ESTATE OF WALTER ALBURY DURBIN (DEC'D) [1994] NSWCA 358

DURBIN v PERPETUAL TRUSTEE COMPANY LTD IN THE ESTATE OF WALTER ALBURY DURBIN (DEC'D)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY J, MEAGHER and HANDLEY JJA 13 July 1994, 11 August 1994

[1994] NSWCA 358

CONTRACT. deed- construction of — suggested repugnancy of clauses — whether early clause takes priority over later — held: (1) No repugnancy; (2) (By maj): Early clause operates, in its terms, to exclude application of later. CONSTRUCTION — contract — proper approach to- repugnancy rule — priority to clause earlier in sequence — last resort to arbitrary rule — preference to search for intention of parties derived from the words used.

CONTRACT — construction of — deed — agreement between brothers for severance of joint tenancy upon conditions which were fulfilled — agreement reserved to one brother the right to reside in the property but, if he ceased permanently to so reside, the property to be sold and the net proceeds equally divided between the brothers — deed also provides that, in the event of one brother's predeceasing the other, the latter was to have the right to elect within a month to reside rent free in the property during his lifetime and thereafter to be divided between the respective estates of the brothers in equal shares — agreed facts indicate that brother resident in property died in hospital soon after his admission there for serious illness including inoperable cancer — that brother in hospital did not intend to return to the property to reside there — primary Judge (Windeyer J) finds repugnancy in clauses of deed — applies rule of construction so that the earlier clause of the deed (providing for sale) took priority over the later (providing for survivor's right of residence) — on appeal- held:

(1) (By the Court) There was no repugnancy within the deed and upon the arguments of both parties, no repugnancy was suggested. Doe and Leicester v Biggs (1809) 2 Taunt R 109 distinguished; Forbes v Git and Ors [1922] 1 AC 256 (PC); The Australian Guarantee Corporation Ltd v Balding (1930) 43 CLR 140; Maile v Jennings [1956] VLR 45 (SCV) considered;