Brunker v Perpetual Trustee Co Ltd [1937] HCA 76; (1937) 59 CLR 140 (16 December 1937)

HIGH COURT OF AUSTRALIA

Brunker Plaintiff, Appellant; and Perpetual Trustee Company (Limited) and Another Defendants, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

16 December 1937

Rich, Evatt and McTiernan JJ.

Piddington K.C. (with him McKillop), for the appellant.

[Mason K.C. (with him Beresford Grant), for the respondents.

Piddington K.C.

Mason K.C. and Beresford Grant, for the respondents,

Rich J.

In this case the appellant brings a suit of a very unusual kind. She claims to have equitable rights under a trust deed or settlement. The trusts are not on their face in favour of any individual but have for their purpose the maintenance of a sanctuary for birds. The trust deed is made between the late R. J. D. Sellar and the Perpetual Trustee. Co. (Ltd.). The Perpetual Trustee Co. (Ltd.) as trustee is directed to pay the annual income of the trust funds to the Royal Society for the Prevention of Cruelty to Animals N.S.W. Incorporated so long as the society shall observe and perform certain conditions which are set out. The conditions require it to keep up a sanctuary for birds. The society is not bound to apply the income in performing the conditions. The income is its own so long as it performs the conditions. Condition 4 is as follows:—"The trustee shall pay the annual income of the investments to the society for its general purposes and shall permit the society to use occupy enjoy and appropriate the sanctuary for its general purposes as aforesaid whilst and so long as the said society shall observe and perform the following conditions:—(1) The society shall otherwise than out of the income of the trust fund: (a) Well and sufficiently repair maintain amend and keep the said sanctuary with the appurtenances in good and substantial repair and all fences fixtures and things thereto belonging. (b) Pay all taxes rates and assessments whatsoever whether municipal local government parliamentary or otherwise which shall at any time be charged upon the said sanctuary or upon the trustee or society on account or in respect thereof. (c) Insure and keep insured against loss or damage caused by fire explosion lightning thunderbolt storm flood tempest earthquake riot civil commotion rebellion and insurrection all buildings and other erections upon the said lands in the full insurable value thereof in some insurance office approved of by the trustee in the name of the trustee and will upon the request of the trustee show to it the receipt for the last premium paid for such insurance and as often as such buildings and other erections upon the said lands shall be destroyed or damaged by fire explosion lightning thunderbolt storm flood tempest earthquake civil commotion rebellion and insurrection all or any sums of money which shall be recovered or received for or in respect of such insurance shall be laid out and expended in building or repairing the said buildings and erections upon the said lands or such parts thereof as shall be destroyed or damaged by fire explosion lightning thunderbolt storm flood tempest earthquake riot civil commotion rebellion and insurrection as aforesaid. (d) Pay or provide all costs charges expenses and outgoings of and incidental to the maintenance and management of the said sanctuary and the yards and grounds thereof and pay the salaries and wages of all managers housemaids gardeners and all servants and workmen who shall be employed in and about the said sanctuary and do all such works and things as may in the opinion of the trustee be from time to time necessary or desirable for the purposes aforesaid or any of them and in executing the trusts and powers herein contained. (e) Employ keep and maintain upon the said lands from time to time a manager and all necessary servants gardeners workmen and others for the purposes aforesaid all of which persons shall be approved of by the trustee and be employed at such weekly salary or wage as the trustee and the society shall from time to time agree upon and such employment except as regards the settlor shall be determinable by a week's notice from the trustee or society to the employee. The said settlor shall be employed as such manager during his lifetime and shall have the right to nominate the first manager after his death. The duties of the manager who shall have the control of any servants workmen or others from time to time employed for the purposes aforesaid shall in particular be as follows:—(i) To keep the said sanctuary clean and in good habitable condition including in particular the grounds and lawns and the fountain at present erected in the grounds of the sanctuary. (ii) To permit and encourage all Australian native birds including in particular native doves to come and drink at the said fountain at all times. (iii) To feed or cause to be fed all visiting birds three times daily in the summer at about six o'clock in the forenoon at about noon and at about five o'clock in the afternoon and at corresponding hours having regard to sunrise and sunset in the other seasons of the year with such quantity of wheat grain and/or seed as shall be sufficient to fully and properly feed at each of such times all such visiting birds such quantity of wheat grain and/or seed to be distributed each week amongst such visiting birds to be not less than the equivalent of the quantity that could be purchased from time to time at current market rates for the sum of one pound. (iv) During the progress of feeding and/or drinking to keep such birds free from molestation of man or any kind of animal. And the due performance of such duties shall be one of the conditions on which the society shall be entitled to the use occupation and enjoyment of the sanctuary and to be paid the said income. (2) The society shall not lease assign transfer demise or part with the possession or by any act or deed procure the said lands or buildings or any part thereof to be assigned transferred demised or put into possession of any person or persons without the previous consent in writing of the trustee and shall not keep or maintain or permit to be kept or maintained in or upon the said sanctuary any animals birds fish or other classes or kinds of living things not approved of by the trustee." It is under this condition that the plaintiff claims to have rights in equity. The settlor, who is now dead, exercised his right to nominate the first manager after his death by nominating the plaintiff. She and the society have been unable to agree upon the terms upon which she shall be employed as manager. The society wish to appoint her at £2 a week together with the use of the residence, and apparently it treats her tenure as determinable by a week's notice. As I understand she claims that her tenure is quam diu bene se gesserit. She claims to be appointed at £5 per week because that is the wage at which she was appointed by the settlor. In my opinion there is more than one insuperable obstacle to the success of her suit. In the first place, it is quite opposed to what I think is the clear meaning of the clause. Clause 4 (1) (e) says: "which persons shall be approved by the trustee and be employed at such weekly salary or wage as the trustee and the society shall from time to time agree upon and such employment except as regards the settlor shall be determinable by a week's notice from the trustee or society to the employee." The expression "which persons" includes the manager; that, I think, is quite plain. The words "except as regards the settlor" except R. J. D. Sellar, but not his nominee. It follows that the salary is to be fixed by the trustee and the society and the plaintiff is liable to dismissal on a week's notice from either of them. But to overcome this difficulty she claims rectification of the deed. What her locus standi in a suit for rectification is I have not been able to grasp, but, passing that by, the deed was drawn, submitted to the settlor and approved by him; submitted to the society, considered by its counsel and approved by him and it; elaborately considered by the settlor's counsel and solicitor and passed by them with laudatory commendation on the part of the latter. You cannot rectify a deed because its effect is disappointing. You can only rectify it because its words depart from the words intended to be used. You have to find those words expressed somewhere or other antecedently to the deed: otherwise you have nothing to rectify it to. Here the settlor is dead and cannot contradict any evidence. But there is no evidence that at the time he executed the deed he intended any other words to be used or inserted in the deed. It does appear that about a year after the execution of the deed the settlor asked his solicitor for information as to matters in connection with the bird sanctuary, especially in regard to his successor as manager, and the solicitor in reply gave him the following advice:—"The manager so appointed by you (and the appointment can be made by letter addressed to The Perpetual Trustee Company (Limited) at any time) will continue to act as manager during capacity and good behaviour. In other words, he could not be removed during his lifetime except on the ground of proved misbehaviour or incapacity." I cannot agree, as I have already said, with this construction of the deed, and it may be unfortunate that the settlor was allowed to rest satisfied with it. But this can have no bearing on rectification. The solicitor's opinion a year after the execution of the deed is not admissible on the issue. In my opinion the claim for rectification cannot succeed and the deed must be given effect according to its construction. As I have already said, upon that construction the plaintiff's suit fails. But in any event I cannot see how the plaintiff can maintain the suit. The clause created no trust in favour of the settlor's nominee. The right to be employed as manager of the bird sanctuary is not property, and his power of nomination is not a power of appointment to an interest in property. There is nothing to show that in making the settlement he contracted as a trustee for the plaintiff. The society is not a party to the deed. It is only bound to fulfil the terms of the deed as a condition of its right to the annual income. The conditions are expressed in the deed and the plaintiff has no right to enforce their fulfilment. The Attorney-General not being a party to the suit, it is not desirable to say anything in other respects about the effect of the deed in the events which have happened or are likely to happen.

In my opinion Nicholas J. was right in dismissing the suit and this appeal should be dismissed with costs.

One other matter should be mentioned. I agree with the comment of Nicholas J. to the effect that a moral obligation rests upon the society to give effect as nearly as possible to the wishes of Mr. Sellar. In view of clause 5 of the deed providing for a gift over to the Benevolent Society in certain events the carrying out of such moral obligation may also turn out to be good policy.

Evatt J.

I agree.

McTiernan J.

I agree.

Appeal dismissed with costs.

Solicitors for the appellant, William Patterson & Co.

Solicitors for the respondents, Iceton, Faithfull & Baldock.