THE QUEENSLAND LAW REPORTER 103

Re BRO W N , DECEASED
45. Will— Construction— Bequest to trustee as agent for finance
company to be formed— Yoid for uncertainty— Unlimited gift of
income prima facie gift of corpus—Inclination against intestacy.
By his will the testator provided inter alia that he bequeathed the balance
of his estate to a certain person “in trust as agent for a Finance Company
to be formed. The income from this investment is to be shared equally by
two persons named herein and on their demise , to be shared by their children
in equal shares”.
Held, th at the bequest to a trustee as agent for a finance company to be
formed, is too vague to convey any real meaning at all and is void for
uncertainty.
Held, further, th at in the circumstances of the instant case, there is no
intestacy as to the balance of the estate as there are clear indications of what
the testator meant to leave and to whom he m eant to leave it; the failure
of the proposed tru st to form a finance company is only a failure of a mode
of investment the object of which is to give a beneficial interest to life
ten an ts and, on their respective demises (as a m atter of interpretation and
necessary im plication) as to the corpus to their children; an unlim ited gift
o f income is prima facie a gift of the corpus.
O RIGIN A TING SUMMONS.
Queensland Trustees Limited as executor and trustee of the will of George
Aubrey P atten Brown (bearing date 23rd December, 1959), caused an
originating summons to be issued to determ ine certain questions arising
under the will. The questions and the m aterial fects are set out in the
judgm ent.
Fairleigh, for the applicant: The direction to form a finance company is
void for uncertainty and vagueness as is apparent from the questions which
are set out in the summons as the alternative to Q. 1. Accordingly there
is no valid or effective appointm ent of McLucas, and Queensland Trustees is
the sole executor and sole trustee of the whole estate and has full power
of sale and management thereof. The court leans against an intestacy and
th ere is an unlimited gift of income to the children of the classes set out
in Q. 1 (c), so that there is a gift of corpus. The hotchpot provision in
cl. 4 is a divesting one and should be construed strictly and so has no
•application in the events which have happened. He referred to “Re Kolb’s
Will Trusts. Lloyds Bank Ltd. v. Ullmann and others” ([1961] 3 All E.R.
811); Qualter, Hall & Co. Ltd. v. Board of Trade and another ([1961] 1 All
E.R. 210); Re Mordan ([1905] 1 Ch. 515); Re Turner ([1897] 1 Ch. 536);
Khoo Tek Keong v. CKng Goo Tuan Neoh ([1934] A.C. 529); Learoyd v.
Whitely ([1889] 12 A.C. 727); Shaw v. Cates ([1909] 1 Ch. 389, at pp. 396
and 397); The Trustees and Executors Acts, 1897 to 1961, s. 4.
Draney, for C. T. Brown and L. E. Wilson in their own right and as
representatives for their respective children born and to be born, adopted
the argum ent and proposed answers of the applicant and further referred to
Summergreene v. Parker ( [1950] 80 C.L.R. 304, at p. 3 1 8 ) ; Vickery v. Woods
([1951] 85 C.L.R. 336, at p. 348); Fell v. Fell ([1922] 31 C.L.R. 268, at
p. 284); Jarm an on W ills, 8th ed., p. 1172.
O'Sullivan, for A. J. Brown as representative of the persons who would
take in the event of an intestacy, agreed with the proposed answers with the
exception of Q. 1 (e) as to the disposal of the balance of the estate and
subm itted th at there was an intestacy, and as a corollary thereto that Q. 1 (d)
should be answered— No. H e subm itted th a t there was not an absolute gift
in the first place but a complete failure of a tru st with a resulting trust
and an intestacy. He referred to U nderhill’s Law of Trustees, 10th ed.,
pp. 172-176. Hancock v. Watson ([1902] A.C. 14); Lassence v. Tierney
([1849] 1 M ac & G. 551).
Curia advisari vult.
104 THE QUEENSLAND LAW REPORTER

STABLE J .: The abovenamed George Aubrey P atten Brown, hereinafter

referred to as the testator, on 23rd December, 1959, made and executed an
instruction sheet fo r the preparation of a will to take effect as a last will
and testam ent in the event of his death before a fu rth er testam entary
instrum ent was executed by him. He did die before executing a fu rth er
testam entary instrum ent. Probate of the instrum ent which he executed,
hereinafter referred to as a w ill, was granted to Q ueensland T rustees Lim ited
by this court on the 25th November, 1960. The will is on a printed form,
and paragraph 8 of th a t form contains the question “Do you wish to
appoint any person as an Executor and T rustee w ith Q ueensland Trustees
Limited ? If so please give full name, address, and occupation” . The answer
is “Queensland Trustees Ltd. solely”. ■
P aragraph 9 of the printed form contains this, “Please state clearly and
concisely how you wish to dispose of all your estate, and give full names
and addresses of all beneficiaries. Also state w hether you wish legacies
given free of death duties (i.e. w hether death duties are to be paid out of
your estate and not by beneficiaries).” The dispositions made against this
printed request are as follow s:—
“I direct that my estate be disposed of as follow s:
(1) Legacy free of death duty to Cedric Tyson Brown (brother, Railway
Foreman, Railway Reserve, Innisfail, £1,000).
(2) Legacy free of death duty to M rs. Doris Lillian Ethel W ilson,-
Housewife, C harters Towers—£1,000.
(3) In the event of either of these persons herein mentioned, predeceasing
me I bequeath the am ount of legacy shown in each instance to the
children of the deceased person in equal shares.
(4) In the event of my receiving a share in the Estate of Bert Brimble-
combe, 2 Llandoff St., Bondi Junction, Sydney, during my lifetime,
I bequeath this share of the E state to C. T. Brown and D. L. E.
Wilson in equal shares, with a proviso th at Clause 3 operates, if
necessary (£3,000 previously given to C. T. Brown to be taken into
account in distribution of equal shares.)
(5) The balance of my estate I bequeath to Ronald M cLucas in trust
as agent for a Finance Company to be formed. The income from this
investment is to be shared equally by 2 persons nam ed herein and on
their demise, to be shared by th e ir children in equal shares”.
These are the only disposing provisions of the will.
P aragraph 11 of the printed form seeks short particulars of assets, and
the testator named, inter alia, “£1,000 N orth Q ueensland Finance Co.” and
“£4,000 Customs Credit Corporation”. He had no such shareholdings in his
estate whose nett value as shown in the succession accounts is £15,414 9s. lid .,,
and he did not at any tim e have any interest in any companies called by
those names. He was unm arried and was survived by four brothers and a
sister as next of kin, all of whom are sui juris. The Cedric Tyson Brown and
Doris Lillian Ethel Wilson named in the will are one of the testator’s brothers
and his sister, and each of them has living children who were living at the
date of the death of the testator. The Bert Brimblecombe referred to in
the will survived the testator, who is not entitled to any share in w hat he
refers to as “the Estate of Bert Brimblecombe”. The reference in the will
to “£3,000 previously given to C. T. Brown” is a reference to a gift of th a t
sum to the said Cedric Tyson Brown made by the testator in February, 1956.
F urther, paragraph 11 already referred to also sets out “ I wish my trustees
(Q. T rustees Ltd.) to have full power of sale and m anagem ent excepting
by bequest in Clause 5” .
In these circum stances th e executor says that the following questions arise,
and asks them in its O riginating Summons:—•
“ (1) Is the provision in the first sentence of the fifth dispositionary clause
of the said W ill, namely ‘The balance of my Estate, I bequeath to
R onald M cLucas in T ru st as agent for a Finance Company to be
formed’ void for uncertainty and vagueness or otherwise and if so, then
 THE QUEENSLAND LAW REPORTER 10S

(a) Does the said will contain a valid and effective appointm ent of
Ronald M cLucas in respect of ‘the balance’ of the estate as trustee
or as agent and for w hat purposes?
(b) Is Queensland Trustees Ltd. the sole executor and sole trustee
in respect of all of the estate of the said deceased?
(c) If Ronald M cLucas desires to be discharged or refuses to act
as trustee or agent under the said will is it necessary th a t any
other person should be appointed in his place?
(d) Does the full power of sale and m anagement conferred by the
said W ill on Queensland Trustees Ltd. extend to ‘the balance’ of
the said estate?
(e) Is ‘the balance’ of the said estate to be held as to one-half thereof
for Cedric Tyson Brown for life, and upon his death for his children
equally, w hether born before or after the death of the said
T estator with representation for such children of the said Cedric
Tyson Brown who, having survived the said Testator, die during
the lifetim e of the said Cedric Tyson Brown absolutely both as to
capital and income and the other half thereof for Doris Lillian Ethel
W ilson for life and upon her death for her children equally,
whether born before or after the death of the said Testator with
representation for such children of the said Doris Lillian Ethel
Wilson who having survived the said testator die during the lifetime
of the said Doris Lillian Ethel Wilson absolutely both as to capital
and income or for w hat other persons and in w hat interests is ‘the
balance’ of the said estate to be held?
IN TH E A LTERNA TIV E to (1)
(2) I s the said provision in the first sentence of the fifth dispositionary
clause of the said W ill valid and binding and if so then
(a) Is a firm to be registered under ‘The Registration of Firm s Act
1942 to 1958’ and if so who are to be the members thereof and
what are the limits of the businesses which that firm may conduct
and w hat are the lim its of its borrowing powers and its lending
powers and w hat investments are authorised for it and on w hat
security, or is a lim ited company to be incorporated under ‘The
Companies Acts 1931 to I960’ and if so who are to be the founders
the directors and the shareholders of that company and what are
to be its capital and shareholding structure and its objects, and
w hat are the limits of the businesses which it may conduct and
w hat are the limits of its borrowing powers and what investments
are authorised for it and on w hat security?
(b ) Is Queensland Trustees Ltd. entitled to or bound to take any, and1
w hat p art, in the form ation or m anagement and control of th a t
firm or th a t company (as the case may be) and is Queensland
T rustees Ltd. entitled or bound to receive the income or profits
or dividends of th at firm or company (as the case may be) fo r
distribution to beneficiaries under the said W ill?
(c) If Ronald M cLucas desires to be discharged of or refuses to act
as tru stee or agent under the said Will, is it necessary th a t any
other person should be appointed in his place or may Queensland
T rustees Ltd. act solely in respect of the trusts for the whole
of the said estate and will the full power of sale and management
conferred by the said W ill on Queensland Trustees Ltd. thereupon
extend to ‘the balance’ of the said Estate?
(d) Does Ronald M cLucas have any and what functions to perform
in the adm inistration of the estate prior to ‘the balance’ of the
estate being made available to him by Queensland Trustees Ltd.
(3) W ith respect to Clause 4 of the said W ill and in the circumstances
which have happened, is there any operation for the requirem ent in the
106 THE QUEENSLAND LAW REPORTER

said W ill that ‘£3,000 previously given to C. T. Brown be taken

into account in distribution of equal shares’? ”
Clause (5) of the dispositions creates the main difficulty. W hat is a
Finance Company in the complex financial structure of this decade of the
tw entieth century? Is it a money lending company, an investment company,
a discount house, a broker, a hire purchase company, to name some of the
kinds of institutions which in my understanding might fall w ithin that
description whatever the testator may have m eant by it. The w ill contains
no indication as to w hat the testator means by a “finance com pany”. W ithout
more ado I have no difficulty in holding th at the bequest of the balance of
the estate “to Ronald M cLucas in T rust as agent for a Finance Company to
be formed” is too vague to convey any real m eaning at all and is void
for uncertainty. The provision concerning the only purpose for which
Ronald McLucas was appointed by the testator being void it follows that
his purported appointm ent cannot be valid and effective and th at Queensland
Trustees Limited is sole executor and sole trustee in respect of all of the
■estate of the testator. There is no need to consider M cLucas further. I also
consider it clear that the full power of sale and management conferred by
the will upon Queensland Trustees Limited extends to “the balance” of the
estate referred to in Cl. (5).
As to Cl. (5), it is contended on the one hand as a m atter of interpretation
of this roughly prepared docum ent (w hich it seems was in fact only
executed as a sort of stopgap before a further testam entary instrum ent was
executed), th at Cedric Tyson Brown and Doris Lillian Ethel W ilson are
the “2 persons named herein” and are the beneficiaries with their children
to follow them, and on the other hand th at there is an intestacy as to “the
balance” of the estate. Has the testator set out clearly w hat is the property
he is disposing of? I consider he has— it is “the balance” of his estate,
something readily ascertained in the norm al process of adm inistration. Has
he set out clearly the persons whom he intends to benefit and the extent of
the benefit? Again, I consider the answer is th a t he has so done in stating
that “the income from this investm ent is to be shared equally by 2 persons
nam ed herein and on their demise, to be shared by their children in equal
shares”. There can be and is no suggestion that M cLucas was to take
beneficially. Thus, after payment of the income to the named parents for
life as tenants for life there is an unlim ited gift of income to their children,
which is prima facie a gift of the corpus— see H alsbury, 2nd ed., vol. 34,
p. 243, para. 295, with class ascertainm ent as set out in the same volume
pages 268-9, para. 319.
As to the proposition th a t there is an intestacy as to “the balance” I have
referred to w hat appear to me to be the clear indications of w hat the testator
meant to leave and to whom he meant to leave it. In the case in which
Isaacs J. named his ten “incontestible principles” (Fell v. Fell ([1922] 31
C.L.R. 268)) he at p. 273 said, inter alia, “ A ctual intention has freer scope
in recent years than in many of the earlier cases”. At pp. 275-276 he
referred to the inclination of the mind against intestacy, and adopted the
words of Buckley L.J. in Kirby-Smith v. Parnell ([1903] 1 Ch. 483, at p. 489)
“In ascertaining the intention, I ought to a certain extent— we all know
w hat the expression means—to lean against an intestacy, and not to presume
th a t the testator m eant to die intestate if, on a fair construction , there is
reason for saying the contrary ” .
As to the argum ent for an intestacy, I understand the law to be there
will be no resulting trust (as was contended for) where a contrary intention
can be collected. It appears to me th a t the failure of the proposed tru st
to form a finance com pany is only a failure of a mode of investment the
object of w hich was to give a beneficial interest to life tenants and on th eir
respective dem ises (as a m atter of interpretation and necessary im plication)
as to the corpus to their children. I conclude that there is no intestacy
as to “the balance”.
 THE QUEENSLAND LAW REPORTER 107

I answer the questions as follows:—

(1) The provision in the first sentence of the fifth dispositionary clause
of the will, namely “The balance of my estate, I bequeath to Ronald
McLucas in T rust as agent for a Finance Company to be formed” is
void for uncertainty and vagueness.
(a) No. (b) Yes. (c) No. (d) Yes.
(e) “The balance” of the estate is to be held as to one half thereof
for Cedric Tyson Brown for life, and upon his death for his
children equally, w hether born before or after the death of the
testator with representation for such children of the said Cedric
Tyson Brown who, having survived the testator, die during the
lifetime of the said Cedric Tyson Brown absolutely both as to capital
and income and as to the other half thereof for Doris Lillian
Ethel W ilson for life and upon her death for her children equally,
w hether born before or after the death of the said testator with
representation for such children of the said Doris Lillian Ethel
W ilson who having survived the said testator die during the
lifetim e of the said Doris Lillian Ethel Wilson absolutely both as
to capital and income.
(3) No.
It is unnecessary to answer any of the further questions asked.
O rder that the costs of all parties including reserved costs be taxed
■as between solicitor and client and paid out of the estate of George Aubrey
P atten Brown deceased.
Order accordingly.
20th, 22nd June, 1962. SUPREM E COURT, BRISBANE (STABLE J. AT
CH AM BER S). Counsel: F airleigh; D raney; O’Sullivan. Solicitors: Steindl,
W ardrobe & Co., town agents for W. P. Montgomery & Montgomery,
A therton; O’Sullivan, Ruddy & Currie, town agents for R. L. Arnell, Innisfail;
M orris, F letcher & Cross, town agents for Lees, Gross & Long, Atherton.
C.F.F.

Re QUEENSLAND TILIN G SERV ICE P T Y . LTD . v. T H E

SIS T E R S O F SAINT JO S E P H O F T H E M O ST SACRED
H E A R T O F JE SU S AND E. J. TA YLO R & SON P T Y . LTD.
46. Labour— Contractor’s lien—Commencement of proceedings—
Completion of work— Effect of subsequent repair of defects—
The Contractors’ and Workmen s Lien Acts, 1906 to 1921, s. 19.
Where work under a contract is completed by a certain date and the
contractor does further work repairing defects in the completed work at a
subsequent date, the period within which the contractor may make a claim
under The Contractors’ and Workmen’s Lien Acts, 1906 to 1921, commences
to run as from the date of completion of the work, and not as from the
date upon which the defects were remedied.
The date certified under a contract for the expiration of the defects liability
period is not the material date as it is referable to a liability period and not
to a completion period.
Where a Statement of Claim under The Contractors’ and Workmen’s Lien
Acts, 1906 to 1921, states a date of completion of work indicating a lack of
jurisdiction on the face of the Statement of Claim, leave to amend the
Statement of Claim to show jurisdiction should be refused.