Amour v National Trust of Australia (NSW) [2009] NSWSC 23

New South Wales Supreme Court

CITATION : Amour v National Trust of Australia (NSW) [2009] NSWSC 23

HEARING DATE(S) : 28/11/08 and 17/12/08

JUDGMENT DATE : 6 February 2009

JURISDICTION : Equity

JUDGMENT OF : White J

DECISION : Refer to para 23 of judgment.

CATCHWORDS : SUCCESSION – wills, probate and administration – construction and effect of testamentary dispositions – no question of principle

National Trust of Australia (NSW) v Amour (NSW Court of Appeal, 3 December 1997, unreported; BC9706373) Doe d. Hiscocks v Hiscocks (1839) 5 M&W 363; 151 ER 154 CASES CITED : Doe d. Gord v Needs (1836) 2 M&W 129; 150 ER 698 Littledale v Bickersteth (1876) 24 WR 507 University of New South Wales v Moorhouse (1975) 133 CLR 1

Haines, Construction of Wills in Australia (2007) Certoma, The Law of Succession in New South Wales, 3rd ed (1997) TEXTS CITED : Butt, Land Law, 5th ed (2006) Macquarie Dictionary, rev 3rd ed (2003)

Francis Michael Amour & 1 Or PARTIES : v National Trust of Australia (NSW) & Anor: Estate of Paul William Butler

FILE NUMBER(S) : SC 5594/93

Plaintiffs: H Stowe COUNSEL : 1st Defendant: J E Armfield 2nd Defendant: B Nolan

Plaintiffs: Hugh & Associates SOLICITORS : 1st Defendant: Eakin McCaffery Cox 2nd Defendant: Crown Solicitor

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Friday, 6 February 2009

5594/93 Francis Michael Amour & 1 Or v National Trust of Australia (NSW) & Anor: Estate of Paul William Butler JUDGMENT 1 HIS HONOUR: This application concerns the proper construction of the will of the late Paul William Butler who died on 16 June 1991. Clauses 3 and 10 of the will provide as follows: " 3. I GIVE to the said IAN MALCOLM STEWART - (a) absolutely my normal everyday car; (b) the use during his lifetime of such of my vintage cars as he may wish. ... 10. I GIVE the residue of my estate to the NATIONAL TRUST (NEW SOUTH WALES BRANCH) upon the condition that the Trust restore and preserve my properties 1 and 3 Darley Road, Randwick and all furniture, machinery, cars and other contents therein for future exhibition to the public at the above location and in accordance with layout plan prepared by me. My Executors shall notify the National Trust of this bequest in writing within four (4) weeks of obtaining grant of probate. If the National Trust does not accept this bequest in writing and subject to above conditions within six (6) months of my Executor's written notification my Executors at their discretion shall pay the residue to some other organisation which they consider will most nearly fulfil the above objects. If this last trust fails my Executors shall apply residue of my estate for general charitable purposes as they think fit. " 2 On 3 December 1997 the Court of Appeal declared that on the true construction of the will and in the events which had happened the gift of residue to the National Trust in clause 10 of the will was a valid gift to the National Trust of the residue of the testator's estate, to be held by it upon trust for charitable purposes. The proceedings were remitted to the Equity Division to inquire whether it is impossible or impracticable to carry the stated charitable purposes of the gift into effect; if so, to determine whether the residue should be applied cy-prés; and, if so, to direct and settle a cy-prés scheme (National Trust of Australia (NSW) v Amour (NSW Court of Appeal, 3 December 1997, unreported; BC9706373)). 3 On 6 April 2001, the Court make declarations and orders on the basis of agreed submissions of the parties. It was declared that it is impracticable to carry out the stated charitable purposes of the gift of the deceased contained in clause 10 of the will. The Court determined that a cy-prés scheme for the administration of the charitable trust constituted by the gift be established. Orders were made in relation to the preparation of a cy- prés scheme premised upon the creation of a museum at 1 Darley Road, Randwick. Notwithstanding that orders were then made with a view to the implementation of such a cy-prés scheme, no such scheme has yet been formulated. As recently as 26 November 2008, the National Trust reconsidered its position and decided not to proceed with a house museum at 1 Darley Road, Randwick. An outline of an alternative cy-prés scheme has been provided to the executors and the Attorney-General and is subject to discussion. Directions have been made in relation to that matter, with a view to a cy-prés scheme at last being implemented. Apparently as a result of such discussions, issues have arisen between the parties as to the extent of the rights of Mr Stewart, one of the executors, under clause 3(b) of the will. 4 By an amended notice of motion, the executors seek the determination of questions as to the proper construction of clauses 3(b) and 10 of the will. The orders sought are as follows: "1. A determination as to whether on the true construction of the last will and testament of Paul William Butler (the deceased) dated 17 August 1990 and in the events which have occurred, whether the gift to Ian Malcolm Stewart in clause 3(b) of the Will: (a) confers a right on Mr Stewart to: (i) choose to use one car from the deceased's vintage car collection at any one time; (ii) choose more than one car from the said collection; (iii) if the answer to (ii) is yes, whether that right extends to use all of the vintage cars in the collection at any one time; (iv) make once [sic] choice during his lifetime; (v) make choices from time to time during his lifetime; (b) entitled Mr Stewart, in respect of the vehicle(s) the subject of his choice, and his use of the vehicle(s) to: (i) work on, repair, assemble, disassemble the vehicle(s), for the purpose of reconstructing or restoring the vehicle(s); (ii) exhibit the vehicle(s); (iii) drive any of the vehicle(s) for any purpose; (iv) use one or more vehicle(s) at the same time; and (v) take any step that may alter or diminish the vehicle(s). (c) is conditional upon the consent of the National Trust (or any other person); (d) is subject to any rights arising under clause 10 of the will of the late Paul Butler dated 17 August 1990. (e) imposes an obligation to arrange (or contribute to the cost of) storage, maintenance, repair registration, or insurance of the vehicle(s): (i) on Mr Stewart; (ii) on the National Trust to be paid out of the residue of the estate. " 5 Mr Butler and Mr Stewart shared an interest in repairing, maintaining and rebuilding vintage cars. Together they regularly drove Mr Butler's vintage cars on which they had both worked. Mr Stewart was mainly responsible for mechanical repair, assembling and rebuilding, and for machining parts. Mr Butler was mainly responsible for procuring vehicles and parts, financing the projects, auto-electrical work, making timber patterns for foundry work, contracting jobs which neither could do, painting the vehicles, coach-building and woodwork, and providing the workshop at Darley Road and most of the tools and equipment. At his death, Mr Butler owned 15 vintage cars, as well as two vintage trucks and two vintage motorcycles. All but four were in an incomplete state of repair. He had built a large garage behind the house at 1 Darley Road containing machinery and tools and an open display area. 6 Counsel for Mr Stewart sought to adduce evidence of oral statements made by Mr Butler to Mr Stewart as to his intentions for a museum to be established at the properties at 1 and 3 Darley Road, Randwick. Except in two respects, that evidence did not establish anything which would not be inferred from the terms of the gift in clause 10 of the will, save to give further detail of what furniture, machinery, cars and other contents should be put on display. Mr Stewart also deposed that in 1990 Mr Butler said to him words to the effect that after his death he wanted him to have the Jaguar and wanted him to be able to use all the other cars for the rest of his life. He also deposed that Mr Butler expressed the wish that the public should be able to ride on the vehicles on display. All such evidence was objected to. Mr Stewart was not required for cross-examination, and with the consent of all parties I deferred ruling on the objection. 7 In my view, evidence of Mr Butler's intentions, to the extent it goes beyond evidence of surrounding circumstances, is not admissible to construe the will. The evidence was not within the exceptional cases in which evidence of the testator's actual intention is admitted to resolve a latent ambiguity or equivocation where the description of an intended beneficiary or the subject matter of a gift is ambiguous because more than one person or thing satisfies the description (Doe d. Hiscocks v Hiscocks (1839) 5 M&W 363 at 368-369; 151 ER 154 at 156; Doe d. Gord v Needs (1836) 2 M&W 129 at 140-141; 150 ER 698 at 703; Haines, Construction of Wills in Australia (2007) at [5.14-5.16]; Certoma, The Law of Succession in New South Wales, 3rd ed (1997) at pp 144-145). For these reasons I reject paragraphs 23-27 and 38-41 of Mr Stewart's affidavit. 8 Mr Stewart did not contend that clause 3(b) conferred on him a life interest in the deceased's vintage cars. (No issue arose in relation to Mr Butler's Jaguar which was his "normal everyday car" the subject of the gift in clause 3(a).) Whilst the National Trust submitted that clause 3(b) appeared to confer a life interest in all of the deceased's vintage cars, counsel for Mr Stewart accepted that: " Although clause 10 refers explicitly to 'future exhibition', there is nothing in the context of the will, which suggested that the future exhibition of the vintage cars be deferred pending the death of Mr Stewart. " 9 That concession is appropriate. It is clear from the will as a whole that the deceased intended that the National Trust restore and preserve for future public exhibition all the deceased's furniture, machinery, cars and the contents of the properties at 1 and 3 Darley Road, Randwick, subject to the right of Mr Stewart to use during his lifetime such of the deceased's vintage cars as he might wish. In my view, the will confers on Mr Stewart a right of personal use of such of the vintage cars as he might select, in contra-distinction to a right to use and occupy land, which can be exercised through a third party, such that such a gift ordinarily connotes a life tenancy (Butt, Land Law, 5th ed (2006) at [1006] and cases cited). 10 Because the gift to the National Trust is of the "residue of my estate" it is subject to the gift to Mr Stewart in clause 3(b) of a personal right to use the vintage cars. Nonetheless, the National Trust has the equitable ownership of the cars to be held on the trusts of clause 10. It is entitled to possession of the cars except to the extent they may be required by Mr Stewart for his use. Questions (a)(i)-(v) 11 In his written submissions, counsel for the National Trust did not contend that Mr Stewart could only elect to use one of the vintage cars. Counsel submitted that the phrase "such of my vintage cars" should be construed as meaning either one vehicle or more than one vehicle, but not all vehicles. It was also submitted for the National Trust that Mr Stewart could make only one choice during his lifetime as to which car or cars he wished to use. It was submitted that this was because the clause did not contain the words "from time to time". Accordingly, so it was submitted, he was required to make a choice and one choice only. In support of this submission, counsel referred to Littledale v Bickersteth (1876) 24 WR 507. However, that case concerned the construction of a very different will and lays down no principle which might be of utility in the present case. 12 Whatever the breadth of the "use" contemplated by clause 3(b), it is clear from the nature of the gift that during his lifetime Mr Stewart can elect to use such of the vintage cars as he may wish. This means that he may change the cars he wishes to use, and may use one or more than one of the cars. Subject to the power under clause 3(b) being exercised for a proper purpose, in my view Mr Stewart would be entitled to use one car or more than one car from the collection, or all cars from the collection if that were possible, at any one time, and may change the choice from time to time. 13 There is a difficulty in the way question 1(a)(iv) is framed. As framed, the question asks whether Mr Stewart has the right to make one choice during his lifetime. I take it that the sense of the question is whether the will confers on Mr Stewart the right to make only one choice during his lifetime, and so understood, the question should be answered no. Questions (a)(i)(ii) and (v) should be answered yes. Question (a)(iii) should be answered yes, if that is possible. Questions (b)(i)-(v) 14 Questions (b)(i)-(v) are directed to the scope of the right of "use" of the vehicles. 15 Counsel for the National Trust accepted that driving or exhibiting the vehicles would be within the scope of rights granted to Mr Stewart by the will. He submitted that those rights did not extend to the assembly, disassembly, reconstruction or restoration of vehicles, or to the alteration or "diminishing" of vehicles as these steps fall outside the concept of "use". 16 In some contexts, the repair of a motor vehicle would not be a use of it. It would be something done in anticipation of a future use of the vehicle. However "use" as a verb has the wide meaning of "to employ for some purpose ... to avail oneself of; apply to one's own purposes; ..." (Macquarie Dictionary, rev 3rd ed (2003)), and as a noun its meaning is equally wide. The sense in which the word was used by the testator is to be understood by reference to his circumstances and the nature of the cars which are the subject of the right conferred by clause 3(b). All but four of those cars were incomplete. Some had "no body". Many were missing parts such as radiators or gear boxes. Prior to his death, the testator and Mr Stewart had worked on the cars. This was their shared passion. Given that context, I consider that the conferral on Mr Stewart of the right to use the cars extends to his doing work on the cars by way of repairing or restoring them, or assembling or disassembling them, for the purpose of their reconstruction or restoration. That includes taking steps that may alter or "diminish" the vehicles, if those steps were taken for the restoration or reconstruction of the car in question, or for the reconstruction or restoration of another of the deceased's vehicles. In other words, reconstruction or restoration of a vehicle is a use permitted by clause 3(b) and any of the cars can be "used" for that purpose. That is not to say that any step that might "diminish" a vehicle would necessarily be within clause 3(b). For example, clause 3(b) would not entitle Mr Stewart to strip one of the cars of its parts for sale or inclusion in a vintage car of his own. Accordingly, I answer questions (b)(i)-(iv) yes. I answer question (b)(v) yes, if such step is taken for the purpose of reconstructing or restoring the vehicle or any other of the deceased's vintage cars. Question (c) 17 All parties were agreed that Mr Stewart was not required to obtain the consent of the National Trust or any other person for the exercise of his rights under clause 3(b). Question (c) is answered no. Question (d) 18 So far as question (d) is concerned, the rights of the National Trust under clause 10 are subject to the rights of Mr Stewart under clause 3(b). However, as counsel for Mr Stewart submitted, the will suggests that the future exhibition of the vintage cars should not be deferred pending the death of Mr Stewart. In my view, the will contemplates that Mr Stewart's personal right to use cars under clause 3(b) could be exercised concurrently with the exhibition of cars by the National Trust pursuant to clause 10. During the hearing, I raised the question of whether Mr Stewart could exercise his right under clause 3(b) if it would unreasonably interfere with the exhibition of vehicles by the National Trust pursuant to clause 10, and whether if he were to do so, it would be a fraud on the power conferred by clause 3(b). I received written submissions from the parties on those questions. I do not think it appropriate to make a declaration about such hypothetical and abstract matters. The occasion for doing so would only arise if a particular exercise of power under clause 3(b) adversely affected the exercise of the National Trust's powers under clause 10. It is clear that to some extent the rights arising under clause 10 might affect Mr Stewart's exercise of power under clause 3(b). Counsel for Mr Stewart properly accepted that the power of election under clause 3(b) must be exercised for the purpose for which it was conferred. If Mr Stewart purported to exercise the power under clause 3(b) by requiring all the motor vehicles to be delivered to him, not for the purpose of driving any of them, or repairing or restoring them, but to frustrate the National Trust in the exercise of its powers under clause 10, that would go beyond his entitlement under clause 3(b). In that sense his rights would be subject to rights arising under clause 10. However, it is not desirable to attempt any further definition in the abstract of the operation of the two clauses. It is sufficient to observe, as I have, that because the gift to the National Trust under clause 10 is a gift of residue, it is subject to the rights of Mr Stewart under clause 3(b). The extent to which the rights under clause 3(b) should accommodate the position of the National Trust under clause 10 raises purely hypothetical questions. As such, no declaration should be made (University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10, 24). Accordingly, I answer question (d), not appropriate to answer. Question (e) 19 The will is silent as to who should bear expenses arising from Mr Stewart's use of the vintage cars pursuant to clause 3(b). Clause 10 required the National Trust, if it accepted the gift, to restore and preserve the cars, but just as the gift to the National Trust is subject to the prior gift to Mr Stewart, so the condition to the gift to the National Trust is subject to the prior gift to Mr Stewart. In my view, if Mr Stewart wishes to exercise his right to "use" the vintage cars, he is responsible for expenses incurred by him in the exercise of that right. There was no evidence precisely as to the expenses which might be incurred, save that if Mr Stewart were to exercise his right to drive the cars on public roads, the cars would have to be registered and third party insurance obtained. Clause 10 does not oblige the National Trust to pay such expenses. They go beyond expenses of restoration, preservation and exhibition of the cars. If Mr Stewart wishes to drive the cars on public roads, he will be required to meet such expenses. Counsel for Mr Stewart submitted that because, in the absence of a specific direction, a life tenant has no obligation to insure property in which he or she has a life interest, it should follow that Mr Stewart should not be required to insure the cars if he exercises his rights under clause 3(b). However, there are different types of insurance. If Mr Stewart takes possession of the car and the car is damaged or destroyed whilst in his possession, he may be liable to compensate the National Trust if such loss or damage arises as the result of a breach of duty on his part as bailee. He might for his own protection wish to insure himself against such liability, but he has no obligation to insure a car against damage, loss, or theft. On the other hand, if he wishes to drive the car on a public road, the expenses which he incurs to that end arise from his election to use the car and are to his account. 20 I do not know what expenses might be envisaged for storage, maintenance or repair. Whilst as a condition of the gift to it, the National Trust is required to restore and preserve the cars, it seems to me that if Mr Stewart seeks to take matters into his own hands by undertaking his own repair and maintenance of the cars pursuant to the right given to him under clause 3(b) the costs that he incurs in doing so are to his account. If he were to hire a garage to carry out such repairs and to buy oil, paints, tools or parts for that purpose, all such costs would be to his account. 21 That is not to say that the National Trust is not obliged to pay costs of storage, maintenance, repair, registration or insurance. Clearly, it will incur at least some such costs in the exercise of its rights under clause 10. It is obliged to preserve and restore the cars even if Mr Stewart does not exercise his rights under clause 3(b). Presumably it has incurred, and continues to incur, costs in storing the motor vehicles and in undertaking whatever steps it has taken to date (about which the evidence is silent) to preserve and restore the cars. In acting prudently as a trustee, it may be required to insure the cars. If there were a contest about this issue it would not be appropriate to decide in the abstract whether that is so. However, counsel for the National Trust submitted that question (e)(ii) should be answered yes as to the costs of storage, maintenance, repairs and insurance, and Mr Stewart and his co-executor and the Attorney-General also contend for an affirmative answer to question (e)(ii). I will so answer the question. However, for the reasons I have given, I do not consider that the National Trust is required to pay the costs of registration. 22 The National Trust also contended that question (e)(i) should be answered yes, to the extent of paying the costs of registration of the vehicle which Mr Stewart uses. That contention was made on the basis of its submission that the right of use did not extend to the carrying out of works of repair and restoration to the vehicles. I have concluded that the right of use does so extend, and accordingly the National Trust's submission as to the appropriate answer to question (e)(i) contains no relevant admission. In my view, question (e)(i) should be answered by saying that Mr Stewart is required to pay any such costs he incurs from the exercise of his rights under clause 3(b). 23 Accordingly, I answer the questions asked as follows: