Peter Parkinson v Diabetes Australia & Anor [2011] NSWSC 1530

Supreme Court New South Wales

Medium Neutral Citation: Peter Parkinson v Diabetes Australia & Anor [2011] NSWSC 1530 Hearing dates: 24/11/2011 Decision date: 25 November 2011 Jurisdiction: Equity Division Before: Bryson AJ Decision: 1. Order and declare that upon the true construction of the last will of the late Noel James Poore made on 19 March 2007 and in the circumstances which have happened the object of the gift contained in cl (b) of this will and there referred to as, "DIABETES AUSTRALIA", is the first defendant. 2: Order that the costs of the plaintiff of and incidental to these proceedings be paid or retained by the plaintiff on the indemnity basis out of that part of the rest and residue of the estate of the deceased which would otherwise pass to the first defendant; so far as the same shall extend and insofar as it does not so extend out of the rest and residue of the estate of the deceased. 3: Order that the costs of each defendant be paid by the plaintiff out of that part of the rest and residue of the estate of the deceased which would otherwise pass under the gift in paragraph (b) of the will to the first defendant. 4: The exhibits may be returned Catchwords: WILLS PROBATE and ADMINISTRATION - Construction of will - Gift in will to Diabetes Australia - two incorporated bodies existed, one named Diabetes Australia and one named Diabetes Australia-New South Wales - review of evidence of testator's association and means of knowledge, and of usage of names by persons associated with Diabetes Australia-New South Wales - no significant evidence of testator's use of language except that he gave gifts in same terms in two wills - held that the name used was ambiguous in the circumstances but it had not been shown that he did not intend to benefit the body the name of which he literally used Cases Cited: Charter v Charter (1874) LR7HL 364 Evans, In re; Evans v Allott [1950] VLR 60 Hulbert v Hulbert [2004] NSWSC 130 Jones v Loder [Kearney J, Supreme Court of New South Wales, 4 December 1984, unreported] Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 National Society for the Prevention of Cruelty to Children v Scottish National Society for the Prevention of Cruelty to Children [1915] AC 207 Perrin v Morgan [1943] AC 399 Category: Principal judgment Parties: Peter Parkinson (Plaintiff) Diabetes Australia (First Defendant) Australian Diabetes Council (Second Defendant) Representation: Counsel: B Townsend (Plaintiff) R Wilson (First Defendant) TM Dinh (Second Defendant) Solicitors: Willis & Bowring (Plaintiff) Tress Cox Lawyers (First Defendant) Gadens Lawyers (Second Defendant) File Number(s): 2011/00197794