HATZANTONIS & ANOR v. LAWRENCECOX v. LAWRENCE [2003] NSWSC 914

HATZANTONIS & ANOR v. LAWRENCECOX v. LAWRENCE [2003] NSWSC 914

The will, construed as a whole and in its context, conferred on the defendant a right of usage in respect of the house which included the right to let out the property, to retain for his own benefit the income derived from such letting, and correspondingly, required him to pay all rates, taxes, and outgoings in respect of the property for the period of ten years from the testator’s death.

Parties
Plaintiff (1898/03): Coral Marjorie Hatzantonis; Plaintiff (1898/03): Roma Rachel Lawrence; Defendant (1898/03 and 3324/03): Wayne James Lawrence; Plaintiff (3324/03): Alison Brenda Cox; Plaintiff (3324/03): Julie Ann Cox; Plaintiff (3324/03): Stuart James Cox
Jurisdiction
Australia
Judgment Date
16 October 2003
Procedural Posture
Wills – Construction/application in Equity / Determination of Separate Question Prior to Taking Accounts
Outcome
Separate question answered: The defendant was entitled to receive the rental income for the specified period and is personally liable for the outgoings for the same period.
Legal Topics
Construction of Wills, Gifts in Wills to Executors, Rights of Usage or Occupation, Entitlement to Rental Income, Liability for Outgoings
Equity Succession Law Wills and Estates Construction of Wills Gifts in Wills to Executors Rights of Usage or Occupation Entitlement to Rental Income Liability for Outgoings

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Parties

Coral Marjorie Hatzantonis

Plaintiff (1898/03)

Roma Rachel Lawrence

Plaintiff (1898/03)

Wayne James Lawrence

Defendant (1898/03 and 3324/03)

Alison Brenda Cox

Plaintiff (3324/03)

Julie Ann Cox

Plaintiff (3324/03)

Stuart James Cox

Plaintiff (3324/03)

Procedural Posture

Wills – Construction/application in Equity / Determination of Separate Question Prior to Taking Accounts

Legal Issues

  1. 1 Whether the 'right of usage' conferred on the defendant under clause 4 of the will entitles him to receive income derived from the property for the specified period
  2. 2 Whether the defendant is personally liable for payment of all rates, taxes, and outgoings of the property during the period

Ratio Decidendi

The will, construed as a whole and in its context, conferred on the defendant a right of usage in respect of the house which included the right to let out the property, to retain for his own benefit the income derived from such letting, and correspondingly, required him to pay all rates, taxes, and outgoings in respect of the property for the period of ten years from the testator’s death.

Court Disposition

Separate question answered: The defendant was entitled to receive the rental income for the specified period and is personally liable for the outgoings for the same period.

Orders

  • Declaration: (a) The proper construction of the term 'right of usage' entitles the defendant to receive the income derived from 10 Crabbes Avenue, Willoughby for the period 21 May 1992 to 20 May 2002.
  • Declaration: (b) The defendant is personally liable for payment of all rates, taxes and all other outgoings and expenses of 10 Crabbes Avenue, Willoughby for the period 21 May 1992 to 20 May 2002.