Anthony R Cant v Kirby [2011] NSWSC 1193

Anthony R Cant v Kirby [2011] NSWSC 1193

On the proper construction of the deed of grant, in particular cl 2, the deed established a charitable purpose trust to foster the objects of the Aboriginal Corporation, not a trust with Mr and Mrs Kirby or other members as beneficiaries. The grant was a fee simple defeasible by condition subsequent, and when the Aboriginal Corporation breached cl 6.1 by failing to pay rates and the Indigenous Land Corporation requested transfer back, both the disposition and the trust were determined and the Aboriginal Corporation was required to transfer its full legal title. Mr and Mrs Kirby were not beneficiaries and were not entitled to possession against the liquidator.

Jurisdiction
Australia
Judgment Date
27 September 2011
Procedural Posture
Separate Question / Preliminary Issue Concerning the Proper Interpretation of the Deed of Grant
Outcome
Liquidator entitled to order for possession.
Legal Topics
['transfer of Land to Aboriginal Corporation' 'charitable Purpose Trust' 'fee Simple Defeasible by Condition Subsequent' 'rule Against Perpetuities' "liquidator's Possession of Company Property" 'failure to Pay Rates']
['aboriginal Land Rights' 'equity' 'corporations Winding Up' 'trusts'] ['transfer of Land to Aboriginal Corporation' 'charitable Purpose Trust' 'fee Simple Defeasible by Condition Subsequent' 'rule Against Perpetuities' "liquidator's Possession of Company Property" 'failure to Pay Rates']

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Procedural Posture

Separate Question / Preliminary Issue Concerning the Proper Interpretation of the Deed of Grant

Legal Issues

  1. 1 ['Whether cl 2.1 of the deed of grant created a trust in favour of Mr and Mrs Kirby and other members of the Aboriginal Corporation as beneficiaries or a charitable purpose trust.' 'Whether the deed of grant and relevant legislation required the Aboriginal Corporation, after breach and request by the Indigenous Land Corporation, to transfer full legal title or only bare legal title back to the Indigenous Land Corporation.' 'Whether Mr and Mrs Kirby were entitled to possession of Billa Downs Station against the liquidator.' 'Whether the rule against perpetuities affected the trust created by the deed of grant.']

Ratio Decidendi

On the proper construction of the deed of grant, in particular cl 2, the deed established a charitable purpose trust to foster the objects of the Aboriginal Corporation, not a trust with Mr and Mrs Kirby or other members as beneficiaries. The grant was a fee simple defeasible by condition subsequent, and when the Aboriginal Corporation breached cl 6.1 by failing to pay rates and the Indigenous Land Corporation requested transfer back, both the disposition and the trust were determined and the Aboriginal Corporation was required to transfer its full legal title. Mr and Mrs Kirby were not beneficiaries and were not entitled to possession against the liquidator.

Court Disposition

Liquidator entitled to order for possession.

Orders

  • ['The proper construction of the deed of grant was determined as a separate question.' 'Mr and Mrs Kirby were not entitled to possession of Billa Downs Station.' 'The Court will hear further from the parties on the remaining issues in the case.']