Smith v Perpetual Trustee Co Ltd and Delohery [1910] HCA 39

Smith v Perpetual Trustee Co Ltd and Delohery [1910] HCA 39

The documents in question did not in law or fact constitute an assignment or charge; they manifested an agency relationship, and there was no intention to part with dominion over the property. The appellant's power of attorney and letter established only a revocable agency, not an absolute assignment. The forfeiture clause was therefore not triggered. Service of the writ of foreign attachment did not operate as a forfeiture.

Parties
Appellant: Henry Charles Smith; Respondents: The Perpetual Trustee Co. Ltd. and Alfred Henry Delohery
Jurisdiction
Australia
Judgment Date
25 August 1910
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales (equity)
Outcome
appeal allowed
Legal Topics
Forfeiture Clause, Equitable Assignment, Agency and Powers of Attorney, Intention of Parties Under Will, Effect of Foreign Attachment
Equity Trust Law Wills and Estates Forfeiture Clause Equitable Assignment Agency and Powers of Attorney Intention of Parties Under Will Effect of Foreign Attachment

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Parties

Henry Charles Smith

Appellant

The Perpetual Trustee Co. Ltd. and Alfred Henry Delohery

Respondents

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales (equity)

Legal Issues

  1. 1 Did the execution by the appellant of a power of attorney and a letter to the trustee company constitute an assignment or charge of his interest under the will, resulting in forfeiture under a forfeiture clause?
  2. 2 Did the service of a writ of foreign attachment operate as a forfeiture of the appellant's interest under the will?

Ratio Decidendi

The documents in question did not in law or fact constitute an assignment or charge; they manifested an agency relationship, and there was no intention to part with dominion over the property. The appellant's power of attorney and letter established only a revocable agency, not an absolute assignment. The forfeiture clause was therefore not triggered. Service of the writ of foreign attachment did not operate as a forfeiture.

Court Disposition

appeal allowed

Orders

  • The instruments (power of attorney and letter) and the writ of foreign attachment do not operate as an assignment or so as to divest the appellant's interest under the will.
  • Decision of the Chief Judge in Equity reversed.