Pratt v Strathkyle Pty Limited [2004] NSWSC 320

Pratt v Strathkyle Pty Limited [2004] NSWSC 320

The word "issue" wherever it appears in clauses 2(b), 2(c) and 2(d) of the Georgina Wass Trust means all descendants. In clause 2(b), the words "per stirpes" would be redundant if "issue" meant only children. In clauses 2(c) and 2(d), the words "the Relevant Parent" are merely descriptive of Mrs Wass and do not confine issue to children; the deed uses both "children" and "issue"; the age requirement in clause 2(d) and the infant beneficiary provisions in clauses 2(f) and 2(g) would have no practical purpose if issue were confined to Mrs Wass's children.

Jurisdiction
Australia
Judgment Date
22 April 2004
Procedural Posture
Equity Division Proceedings Concerning Construction of a Deed of Trust and Alternative Rectification / Separate Questions of Construction Determined
Outcome
Separate construction questions determined; the plaintiff's claims for declarations that "issue" means "children" were dismissed, and the Court declared that "issue" means all descendants.
Legal Topics
['beneficiaries' 'construction of Deed of Trust' 'meaning of "issue"' 'per Stirpes Distribution' 'representative Defendant for Infant or Unborn Beneficiaries']
['trusts' 'equity'] ['beneficiaries' 'construction of Deed of Trust' 'meaning of "issue"' 'per Stirpes Distribution' 'representative Defendant for Infant or Unborn Beneficiaries']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Construction of a Deed of Trust and Alternative Rectification / Separate Questions of Construction Determined

Legal Issues

  1. 1 ['Whether the words "the issue of Georgina Helen Wass" in sub-clause 2(b) of the deed of trust mean "the children of Georgina Helen Wass" or all descendants.' 'Whether the word "issue" in sub-clause 2(c) of the deed means "children" or all descendants.' 'Whether the words "the issue of the Relevant Parent" in sub-clause 2(d) of the deed mean "the children of Georgina Helen Wass" or all descendants.']

Ratio Decidendi

The word "issue" wherever it appears in clauses 2(b), 2(c) and 2(d) of the Georgina Wass Trust means all descendants. In clause 2(b), the words "per stirpes" would be redundant if "issue" meant only children. In clauses 2(c) and 2(d), the words "the Relevant Parent" are merely descriptive of Mrs Wass and do not confine issue to children; the deed uses both "children" and "issue"; the age requirement in clause 2(d) and the infant beneficiary provisions in clauses 2(f) and 2(g) would have no practical purpose if issue were confined to Mrs Wass's children.

Court Disposition

Separate construction questions determined; the plaintiff's claims for declarations that "issue" means "children" were dismissed, and the Court declared that "issue" means all descendants.

Orders

  • ['Order that the claims paragraphs 1, 3 and 8 of the second further amended summons be dismissed.' 'Declare the words "the issue of" in Clauses 2(b), 2(c) and 2(d) of the Georgina Wass Trust mean "all descendants of".' 'Order that the costs of the plaintiff and the first, second, third, fifth and sixth defendants of...