Brown v Abbott [1908] HCA 6

Brown v Abbott [1908] HCA 6

Regardless of the original intention or construction of the settlement, the execution and registration of the instrument of charge under the Transfer of Land Statute 1866 operated to confer a charge on both corpus and income. The charge attached to the proceeds of the sale of the land, persists unless specifically diminished or removed by order, and had not been so diminished. Thus, the annuitant is entitled to payment of annuity arrears out of the corpus of the investments representing the sale proceeds.

Parties
Appellant; Plaintiff: Eliza Brown; Respondent; Defendant: David Abbott; Respondent; Trustee Defendant: Frederick Trenerry Brown; Respondents; Specific Devisees/defendants: Joseph Trenerry and William Trenerry (eldest son); Respondents; Specific Devisees/defendants: Thomas Trenerry and William Trenerry (eldest son); Respondents; Specific Devisees/defendants: William Martyn Trenerry and William Martyn Trenerry the younger; Respondent; Annuitant/defendant: Louisa Trenerry (now Louisa Wilkinson); Respondent; Substituted Trustees/defendant: Equity Trustees Executors and Agency Co. Ltd.
Jurisdiction
Australia
Judgment Date
23 March 1908
Procedural Posture
Appeal / Final Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Will—settlement—annuity—charge on Corpus or Income, Transfer of Land Statute 1866 (vic.), Res Judicata Effect of Orders, Court Powers on Sale Proceeds
Trusts and Estates Property Law Equity Will—settlement—annuity—charge on Corpus or Income Transfer of Land Statute 1866 (vic.) Res Judicata Effect of Orders Court Powers on Sale Proceeds

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 17 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Eliza Brown

Appellant; Plaintiff

David Abbott

Respondent; Defendant

Frederick Trenerry Brown

Respondent; Trustee Defendant

Joseph Trenerry and William Trenerry (eldest son)

Respondents; Specific Devisees/defendants

Thomas Trenerry and William Trenerry (eldest son)

Respondents; Specific Devisees/defendants

William Martyn Trenerry and William Martyn Trenerry the younger

Respondents; Specific Devisees/defendants

Louisa Trenerry (now Louisa Wilkinson)

Respondent; Annuitant/defendant

Equity Trustees Executors and Agency Co. Ltd.

Respondent; Substituted Trustees/defendant

Procedural Posture

Appeal / Final Judgment on Appeal

Legal Issues

  1. 1 Whether annuity was a charge on corpus or only on income of land under the settlement and subsequent Court orders
  2. 2 Effect of registered instrument of charge under Transfer of Land Statute 1866 (Vic.)
  3. 3 Whether subsequent Court orders diminished the annuitant's rights to the corpus for arrears

Ratio Decidendi

Regardless of the original intention or construction of the settlement, the execution and registration of the instrument of charge under the Transfer of Land Statute 1866 operated to confer a charge on both corpus and income. The charge attached to the proceeds of the sale of the land, persists unless specifically diminished or removed by order, and had not been so diminished. Thus, the annuitant is entitled to payment of annuity arrears out of the corpus of the investments representing the sale proceeds.

Court Disposition

Appeal dismissed

Orders

  • Hood J.'s order affirmed, entitling Louisa Wilkinson to payment of annuity arrears out of the corpus of investment funds representing the proceeds of sale of Tregothnan Estate.
  • Costs of all parties to be paid out of the fund.