Murdocca v Murdocca [2002] NSWCA 373

New South Wales Court of Appeal

CITATION : Murdocca v Murdocca [2002] NSWCA 373 FILE NUMBER(S) : CA 40644/02 HEARING DATE(S) : 12 November 2002 JUDGMENT DATE : 12 November 2002

Antonio Murdocca PARTIES : v Cosimo Murdocca & Ors JUDGMENT OF : Handley JA at 1; Beazley JA at 16; Ipp JA at 17

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 3726/00 FILE NUMBER(S) : LOWER COURT Campbell J JUDICIAL OFFICER :

Appellant - B Coles QC/D Marks COUNSEL : First Respondent - C M Harris Second Respondent - Submitting Appearance Third Respondent - Submitting Appearance Appellant - Roderick B Harris & Co SOLICITORS : First Respondent - Matthews Folbigg Pty Ltd Second Respondent - Bond and Bond Third Respondent - Mackintoshs Solicitors CATCHWORDS : WILL - CONSTRUCTION - NO QUESTION OF PRINCIPLE DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40644/02 ED 3726/00 HANDLEY JA BEAZLEY JA IPP JA

12 November 2002 ANTONIO MURDOCCA v COSIMO MURDOCCA & ORS

Judgment

1 HANDLEY JA: This is an appeal from a decision of Campbell J given on 27 March this year in which he construed the last will of Ernesto Murdocca dated 23 November 1992. The testator died on 29 December the following year. 2 By his will he appointed his three sons, Guiseppe, Cosimo and Antonio as his executors and trustees and probate of his will was granted on 23 March 1994. Among the assets which the deceased owned at the date of his will and the date of his death was a freehold property of about 1.4 hectares at RMB64 Windsor Road, Baulkham Hills. He disposed of this property by clause 5 which was as follows: " I GIVE AND BEQUEATH my property R.M.B. 64 Windsor Road, Baulkham Hills to my sons COSIMO MURDOCCA and ANTONIO MURDOCCA as tenants in common in equal shares for their own use absolutely subject to the following conditions AND I DIRECT that my Trustees shall:- (a) As far as practical subdivide such property into two (2) parcels of approximately equal area and transfer the parcel on which my home presently occupied by me is erected to my son ANTONIO MURDOCCA for his own use absolutely and the other parcel of land to my son COSIMO MURDOCCA for his own use absolutely. (b) I DIRECT that my Trustees may for a period of five (5) years after my death postpone the subdivision and transfer referred to in sub-paragraph (a) hereof until such time as it shall be possible to effect the subdivision and shall during that period permit my son COSIMO MURDOCCA to occupy the whole of my said property subject to him paying to my son ANTONIO MURDOCCA a fair market rental for that part of my property as shall comprise my home; (c) In the event that at the expiration of five (5) years from the date hereof my Trustees shall be unable to obtain planning approval or consent to the subdivision of my property as provided in sub-paragraph (a) hereof THEN I DIRECT that my Trustee shall transfer such property to my son COSIMO MURDOCCA subject to him paying to my son ANTONIO MURDOCCA one half of the value of such property at that date excluding therefrom the value of any improvements erected and paid for by my son COSIMO MURDOCCA on such property; (d) In the event that my Trustees shall be unable to agree on the value of my said property THEN I DIRECT that my Trustees shall retain and obtain written Valuations from at least three (3) registered Valuers entitled to value properties of the nature of my property to determine the value of the property on the basis as set out in sub-paragraph (d) hereof and the value of such property shall be the average of the valuation of such property by such Valuers". 3 It was not possible legally or practically for the executors to subdivide the property within the period of five years from the date of the testator's death so that sub clause (b) did not take effect and prima facie the rights of the two brothers became those conferred by sub clause (c). 4 So much has not been in dispute, but a dispute has arisen as to the meaning of sub clause (c) and in particular the meaning of the expression "at that date" being the date at which the property was to be valued. 5 The first question to be noticed is the words "from the date hereof" at the start of a clause. Read literally and in isolation this was a reference to the date of the will but the parties agree that this was not their true construction and that they referred to the date of the testator's death when the will took effect. This concession was correctly made. 6 It could not have been supposed that the testator intended that the period of five years would be running in his lifetime. A strictly literal construction would have produced an absurdity or a repugnancy which amply justified the construction the parties accepted. However when sub clause (c) is read with sub clause (b) the conclusion that the five years was to run from the date of the testator's death becomes compelling. 7 Sub clause (b) commences with a direction to the testator's trustees that "for a period of five years after my death" they could postpone the subdivision and transfer referred to in sub clause (a). This is self evidently the same period as that referred to in sub clause (c). 8 This still leaves to be decided the true construction of the expression "at that date" in the concluding words of sub clause (c). Mr Coles QC, who appeared for Antonio, submitted that this was the date of the transfer to Cosimo. Campbell J however held that the words referred to the date five years after the testator's death. 9 The Court has heard full argument from Mr Coles in support of his construction but has arrived at a clear conclusion on the matter without finding it necessary to seek the assistance of Mr Harris. 10 The only date literally referred to in sub clause (c) is "the date hereof" namely the date of the testator's death. But the effective date on which the sub clause operates, if it is going to operate at all, is the date 5 years after the testator's death. That is the date on which the operation of the clause depends. 11 Mr Coles sought to avoid that construction by drawing attention to the uncertainty and potential unfairness of the delays which could occur if the property was to be valued 5 years after the testator's death but the transfer did not take place until much later when the value may have significantly increased. 12 The practical considerations to which Mr Coles has referred do raise the possibility of a change in value after the fifth anniversary of the testator's death. This could work to the advantage of either Cosimo or Antonio as events happened, but in my judgment these possibilities do not require the Court to depart from the prima facie meaning of the clause. 13 The alternative construction which he supported was that valuations were to be obtained at the date of transfer but this raised other difficulties. Ordinarily one would expect that the valuers would do their work and write their reports at different dates but they would be valuing as at a past date, which is something that valuers regularly do. However if the valuers were called upon to value at the date of transfer, a future uncertain date, difficulties of an unusual nature would be created. If the language was intractable the Court would have to give effect to its clear meaning, but the language is not intractable. Faced with a choice between a valuation as at a fixed past date, which was the effect of the construction accepted by Campbell J, or a valuation by reference to an uncertain future date, which is the alternative construction propounded by Mr Coles, I am clearly of the view that the Court should prefer the former. 14 In any event the ordinary natural and grammatical meaning of the words "at that date" in clause 5(c) is the date five years after the testator's death. 15 For those reasons I would propose that the appeal be dismissed and it must follow that it should be dismissed with costs. 16 BEAZLEY JA: I agree. 17 IPP JA: I agree. 18 HANDLEY JA: The order of the Court is appeal dismissed with costs. ******