Loxton v Moir

18 CLR 360

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(Judgment by: Rich J)

Between: Loxton
And: Moir

Court:

Judges: Griffith CJ
Isaacs J
Gavan Duffy J

Rich J

Subject References:
Trusts
Appointment of new trustee
Right of action on guarantee
Practice and procedure
Action brought by wrong plaintiff

Legislative References:
Trustee Act 1898 (NSW) (No 4) - the Act
Common Law Procedure Act 1899 (NSW) (No 21) - the Act

Hearing date: SYDNEY 18 May 1914; 19 May 1914; 20 May 1914; 6 August 1914
Judgment date: 6 August 1914

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Judgment by:
Rich J

The only question with which I propose to deal on this appeal is the construction of s. 6 of the Trustee Act 1898. That Act is a consolidating Statute including, amongst others, the original Trust Property Act of 1862, s. 63 of which is, with some additions, reproduced in s. 6.

The question at issue is as to how far an appointment under s. 6 is operative to vest property in the new trustee. The language of the section is clear: it says that all the trust property shall become legally and effectually vested in the new trustee. In my opinion, a proprietary right in the nature of a chose in action is just as much property in the sense in which the word is used in the section as a proprietary right to land. Prima facie, therefore, an appointment under the section would vest a chose in action in the new trustee.

It is suggested, however, in effect that a restricted operation should be given to the section, and that when the legislature says that all the trust property shall become vested it should be deemed to have meant that only such property should become vested as would have been vested by an assurance, or, in other words, that its Act should have no greater effect than an assignment or conveyance by a private individual. The only internal evidence which can be suggested for this view is the presence of the words "and without other assurance." I think, however, that the obvious intention of this phrase was to make it clear that an assurance such as was necessary under Lord Cranworth's Act should not be required under the local Act; and that no such inference as is contended for can fairly be drawn from it.

I am unable to conjecture any reasonable ground for a desire on the part of the legislature to make the vesting provisions of s. 6 subject to any such self-denying ordinance as is suggested by the respondent; and if such a desire were present it has, in my opinion, not been expressed.

When s. 63 of the Act of 1862 is contrasted with Lord Cranworth's Act, from which it was adapted, the matter becomes reasonably clear. The local legislature deliberately departed from the provisions of its English model; and it evidently did so with the object of facilitating the transfer of the property from the old trustee to the new.

I can see no reason for giving to the language of the legislature a construction which appears to conflict with its apparent intention. I am also unable to draw any inference adverse to the appellant's case from the absence from s. 63 of the Act of 1862 and s. 6 of the Trustee Act 1898, of any express provision that the new trustee may sue for or recover any chose in action. The phrase "chose in action" is used in different senses, but its primary sense is that of a right enforceable by an action. It may also be used to describe the right of action itself, when considered as part of the property of the person entitled to sue. A right to sue for a sum of money is a chose in action, and it is a proprietary right. In the view which I take of the section an appointment in pursuance of it has the effect of vesting in the new trustee any such right which existed in the old trustee. No express reference to choses in action or rights to sue was necessary, and I do not think that any inference can be drawn from the absence of such a reference. The right of action is sufficiently comprehended in the general word "property."

I agree that the demurrer should be allowed.

[Note: Ralston K.C. applied, on behalf of the respondent and of R. J. C. Maddrell and P. Douglas, that R. J. C. Maddrell and P. Douglas should be substituted as plaintiffs in place of James Moir. The application was refused by the Court.]