Genesian Theatre Company Inc v State of New South Wales

Supreme Court of NSW|2021-07-01|Before: Garling J

Judgment

This judgment concerns the late Paula Anne Bate ("the Deceased"). The Deceased died on 14 February 2008, aged 68 years.
In late 2007 and early 2008, the Deceased instructed her solicitor to draft her final Will but, as things transpired, it was not executed by the time of her death. I will refer to this as the "unexecuted Will". The Deceased died intestate and her Estate is therefore to be administered in accordance with Division 2A of the Wills, Probate and Administration Act 1898 (NSW) ("the Act") as it was in effect at the time of her death.
The State of New South Wales ("the State") has received the proceeds of the Deceased's estate as bona vacantia. The State has refused an application to pay the balance of the Estate to the plaintiff because it says that upon the proper construction of the Act, it is not permitted to pay monies held bona vacantia to a body corporate.
On 24 February 2021, the plaintiff filed an Amended Summons ("the Summons") seeking a declaration that the plaintiff, as a body corporate, is included within the meaning of the word "person" under s 61B(8) of the Act. The plaintiff also seeks an order that the defendant make a payment from the Deceased's estate in accordance with the unexecuted Will.

Relevant Facts

The following facts, about which there was no real dispute, are established by the evidence.
The plaintiff is a long established and well-known theatre company, which is an incorporated association ("the Genesian Theatre").
From 1975 to 2008, the Deceased had a close association with the Genesian Theatre, being awarded life membership in 1995. The unchallenged evidence shows that the Deceased had expressed, over several years, her testamentary intention to leave the whole of her Estate to the Genesian Theatre.
On 9 October 2007, the Deceased instructed her solicitor to draft her final Will, which he did. He provided the unexecuted Will to the Deceased for her to confirm it.
On 13 January 2008, the Deceased whilst a resident of an aged-care facility, called a meeting with several of her friends to discuss the instructions she had given for her Will. The two proposed executors of the Will, Ms Pamela Whalan and Mr Timothy Bennett, and three other friends, were present at this meeting. The Will provided for the executors to hold the net balance of the Estate on trust for the sole benefit of the Genesian Theatre, provided that such monies were to be utilised for the ongoing benefit of the Genesian Theatre and not be used for general running expenses.
On 19 January 2008, Mr Bennett printed out a copy of the unexecuted Will to bring to the Deceased. The Deceased said words to the effect that she was generally happy with the unexecuted Will and asked Mr Bennett to arrange for a member of the aged-care home's staff to put it in the safe. The Will was never executed.
On 14 February 2008, the Deceased died. No executed Will has ever been found or identified. Accordingly, for the purposes of the Act, the Deceased died intestate.
In 2010, Mr Bennett and Ms Whalan, as executors of the Will, brought an application for probate. The application was dealt with in common form and, within the Registry, it was refused. There was no judicial determination that the unexecuted Will did not constitute a proper expression of the testamentary intentions of the Deceased. The proceeds of the Estate were handed over to the NSW Trustee and Guardian ("the Trustee").
In October 2013, Letters of Administration were granted to the Trustee. The Trustee conducted the requisite searches to identify and determine whether the Deceased had any relatives who were entitled upon intestacy.
In April 2016, the Trustee determined that there were no relatives of the Deceased who were entitled to receive the benefit of the Estate and notified the Office of the Crown Solicitor that the Estate would pass to the Crown as bona vacantia under s 61B(7) of the Act.
From around May 2017, the Genesian Theatre had been in communication with officers of the defendant in an attempt to have, under s 61B(8) of the Act, the defendant transfer the proceeds of the Estate to the plaintiff as the executed Will suggested was the Deceased's wish. The defendant repeatedly refused to do so and, in their response dated August 2018, advised the plaintiff to make an application to this Court to obtain a declaration in relation to the defendant's powers under s 61B(8) of the Act, if it wanted to obtain the payment out of the Estate to it.
These proceedings were commenced in December 2020. In February 2021, the plaintiff filed the Summons with which this judgment is concerned. The Summons sought a declaration that the defendant pay the plaintiff part of the Deceased's estate on the basis that the plaintiff is a "person" within s 61B(8) of the Act.

Relevant Legislation and Legal Principles

Section 21 of the Interpretation Act 1987 (NSW) ("the Interpretation Act"), as in force at the relevant time, defined the word "person" in any statute to include a "body corporate", subject to any contrary intention in the legislation.
Both parties referred the Court to the decision of the High Court of Australia in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) CLR 309, as being relevant to the issue for determination. There, Gibbs CJ observed (at 309) that "the words of any statutory provision must be first read in the context provided by the statute as a whole". Mason J observed at p.312 that "the cardinal rule of statutory interpretation … requires the words of a statute to be read in their context".
The approach to statutory construction was considered by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. At [78], the plurality said: "However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond to the grammatical meaning of the provision. But not always. The context of the words, the consequence of a literal or grammatical construction, the purpose of the statute, or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." (footnotes omitted)
The following parts of the judgment of Bathurst CJ in Kaldas v Barbour [2017] NSWCA 275 at [115]-[116] are also relevant: "115. … As was stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the task of statutory construction must begin with a consideration of the text itself, although its meaning may require consideration of the context which includes the general purpose and policy of the provision, in particular, the mischief it is seeking to remedy: see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23]. 116. In the present case it is also important to have regard to the fact that the statute must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 at [42]."
In Hunter Support Services Pty Ltd v The Children's Guardian [2005] NSWSC 616, Palmer J said (at [16]): "Nevertheless, one must not be too ready to find that a word or phrase defined in the Interpretation Act does not have the meaning ascribed to it in an Act or instrument to which the Interpretation Act applies. Parliamentary Counsel pore over every word of a draft Act or Regulation: in that exercise, the Interpretation Act is always the first resort of reference. Accordingly, if a word in an Act or Regulation defined in the Interpretation Act is to bear a meaning different from that definition, the question is not "does the section or regulation still make sense if the word has a different meaning", but is, rather, 'does the context and purpose of the section or regulation clearly require a departure from the definition of the word in the Interpretation Act'. That is a fairly high hurdle to jump."
At the time of the Deceased's death, the provisions relevant to intestacy were ss 61A-61F of the Act. With effect from 1 March 2010, which was after the death of the Deceased, the above sections were repealed and the Succession Amendment (Intestacy) Act 2009 (NSW) commenced, creating a new section 137 of the Succession Act 2006 (NSW) ("the Succession Act") which, essentially, replaced s 61B of the Act although the words of the new provisions were not identical with s 61B. The explanatory note for the new provisions contained the following: "New sections 136 and 137 provide for the situation where an intestate dies leaving no person entitled to the intestate estate. They provide for a bona vacantia estate to vest in the State but enable the Minister to waive the rights of the State in favour of dependants of the intestate and certain other specified persons and organisations for whom the intestate might reasonably have been expected to make provision. This discretion is similar to that currently contained in section 61B (8) of the 1898 Act intestacy provisions."
Given that the current s 137 of the Succession Act is not to be applied retrospectively, the relevant legislation for the determination of the present dispute is the Act as in force on 14 February 2008.
Section 61B of the Act provides: "61B Succession to real and personal property on intestacy (1) Where a person dies wholly intestate, the real and personal estate of that person shall, subject to the payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate, be distributed or held in trust in the manner specified in this section, and the real estate of that person shall be held as if it had been devised to the persons for whom it is held in trust under this section. (2) If the intestate leaves a spouse but no issue, the estate shall be held in trust for the spouse absolutely. (3) If the intestate leaves a spouse and also leaves issue, then if the value of the estate (excluding any household chattels) does not exceed the prescribed amount, the whole estate shall be held in trust for the spouse, but if the value of the estate (excluding any household chattels) exceeds the prescribed amount, then: (a) the household chattels (if any), (b) the prescribed amount, and (c) one-half of the estate (excluding any household chattels and the prescribed amount), shall be held in trust for the spouse and the residue of the estate shall be held in statutory trust for the issue of the intestate. (3A) Notwithstanding subsections (2) and (3), if the intestate leaves a spouse and a de facto spouse, the whole or, as the case may be, such part of the estate of the intestate as is required to be held in trust for the spouse of the intestate shall be held in trust for: (a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate and the intestate did not, during the whole or any part of that period, live with the person to whom the intestate was married - the de facto spouse, or (b) in any other case - the spouse. (3B) Notwithstanding subsection (3), if the intestate leaves a de facto spouse and also leaves issue but no spouse, the whole or, as the case may be, such part of the estate of the intestate as would, if the intestate had left a spouse, be required to be held in trust for the spouse of the intestate shall be held in trust for: (a) where the de facto spouse was the de facto spouse of the intestate for a continuous period of not less than 2 years prior to the death of the intestate - the de facto spouse, or (b) in any other case: (i) except as provided by subparagraph (ii) - the issue as if the intestate left no spouse, or (ii) where the intestate leaves no issue being children of the intestate or where such of the issue as are children of the intestate are issue also of the de facto spouse - the de facto spouse. (4) If the intestate leaves issue but no spouse, the estate shall be held in statutory trust for the issue of the intestate. (5) If the intestate leaves no spouse and no issue but one or both of the intestate's parents, the estate shall be held: (a) where both parents survive the intestate, in trust for those parents in equal shares, or (b) where only one parent survives the intestate, in trust for that parent absolutely. (6) If the intestate leaves no spouse, no issue and no parents, the estate shall be held for the following persons living at the death of the intestate and in the following order and manner: (a) firstly, in statutory trust for the brothers and sisters of the whole blood of the intestate; but if there are no such brothers or sisters, then (b) secondly, in statutory trust for the brothers and sisters of the half blood of the intestate; but if there are no such brothers or sisters, then (c) thirdly, in trust for the grandparents of the intestate and, if more than one of them survive the intestate, in equal shares; but if there are no such grandparents, then (d) fourthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares; but if there are no such uncles or aunts, then (e) fifthly, in trust for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate) and, if more than one of them survive the intestate, in equal shares. (7) In default of any person taking an interest under subsections (2) to (6), the estate shall belong to the Crown as bona vacantia, and in place of any right to escheat. (8) The Crown, without prejudice to any other powers, may, out of the whole or any part of the property devolving on it as bona vacantia, provide for dependants, whether kindred or not, of the intestate and any other persons for whom the intestate might reasonably have been expected to make provision. (9) Spouses shall for all purposes of distribution under this section be treated as separate persons."
The parties also rely on provisions of the Interpretation Act. The relevant sections are ss 6 and 21: "6 Definitions to be read in context Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires… 21 Meanings of commonly used words and expressions (1) In any Act or instrument - person includes an individual, a corporation and a body corporate or politic."

Plaintiff's Submissions

The Genesian Theatre submitted that the Court should find that the proper interpretation of s 61B(8) of the Act is that the word "persons" used as part of the phrase "… any other persons" includes a body corporate such as itself. It submitted, by reference to s 21 of the Interpretation Act, that the Act does not provide a contrary intention of any kind, let alone one sufficient to negative the definition of person in s 21. It submitted that if Parliament intended s 61B(8) to include only natural persons as the State contends, it would have expressly defined the word "person" in the Act as only including natural persons, or else used the word "individual", or perhaps "natural person".
The Genesian Theatre submitted that it would be "untenable to suggest" that a body corporate could not be a person for whom the Act makes provision, given how commonplace it was when these provisions of the Act came into force for people to leave their estates to charities or other not‑for‑profit organisations, which included bodies corporates.
Further, the Genesian Theatre submitted the Deceased's testamentary intention is the relevant intention to apply, rather than to apply any contrary intention of the kind which the State submits arises from the Act which goes against the definition of "person" derived from the definition provisions in the Interpretation Act.

Defendant's Submissions

The State submitted that the word "persons" in s 61B(8) refers only to natural persons. It submitted that all the other categories of entitlement in s 61B refer to natural persons, such as next of kin or relatives and that the section would be "rendered absurd" if the construction contended for by the Genesian Theatre were to be accepted.
The defendant principally submitted that when construing the word "persons", regard must be had to the words "dependants" and "kindred" in s 61B(8), as this makes it clear that the provision is intending to refer to natural persons only, and should not be read to include a body corporate. The defendant submitted that in this way the words of s 61B(8), in the context of the purpose made clear by the balance of s 61B, demonstrated a sufficient contrary intention so as the definition in s 21 of the Interpretation Act did not apply.

Discernment

The dispute turns on the question of whether the word "persons" in s 61B(8) of the Act is properly construed as including a body corporate, such as the Genesian Theatre.
Before coming to consider the proper construction of s 61B(8), it is convenient to consider the place which s 61B takes in the Act.
Part 2 of the Act deals with Probate and Administration; Division 1 provides for the Jurisdiction of the Court; Division 2 deals with the Estate of the Deceased; Division 3 deals with Probate and Administration. The balance of Part 2, being Divisions 4 to 8 inclusive, can be put to one side in this analysis.
Section 61B falls within Division 2A, which although repealed, is the relevant legislative provision.
Division 2A is entitled "Distribution of Intestate Estate". It comprises ss 61A‑61F.
Section 61A includes particular definitions of words and phrases which are applicable only in Division 2A. There is no definition of "person", nor is there any statement of express intention to exclude the meanings given to words and phrases by the Interpretation Act when the provisions of Division 2A are being interpreted.
As is clear from s 61B(1), the purpose of the section (and the Division) is to provide for the distribution of an intestate's real property "… as if it had been devised to the persons for whom it is held in trust under this section".
I would understand this to be a clear statement of the intention of the Parliament to enact a section which has the effect of remedying the absence of a will and providing for the distribution of an estate's assets, as would occur if a valid will was in existence.
The sub-sections following s 61B(1), down to and including s 61B(6), make comprehensive provision for specifically identified categories of possible relatives of a Deceased
I observe that there are fifteen different ways in which s 61B provides for distribution of the intestate's assets, in the designated order of priority before the legislation declares that the assets of the estate are held by the Crown, bona vacantia.
As is self-evident, as the sub-sections progress, the categories of relatives who become entitled to the estate expand, and the familial distance between the deceased and the categories becomes more remote. The final category of specifically identified relationships is in s 61B(6)(e) where uncles and aunts who are half-brother or sisters of the parents of the deceased have an entitlement.
Finally, s 61B(7) declares that if no one exists within the defined categories of relatives, an estate belongs to the Crown as bona vacantia.
It is in this context that the words of s 61B(8) fall to be considered and accorded a proper interpretation. Put differently, the previous sub-sections have exhausted all of the categories of relationship which the Parliament believes had a claim to be entitled to the assets of an intestate.
It is convenient here to repeat this central sub-section, s 61B(8), which is in the following terms: "(8) The Crown, without prejudice to any other powers, may, out of the whole or any part of the property devolving on it as bona vacantia, provide for dependants, whether kindred or not, of the intestate and any other persons for whom the intestate might reasonably have been expected to make provision."
This sub-section provides the specific power, and the only one contained in the Act, to the Crown to distribute the assets of an estate held bona vacantia.
Section 61B(8) provides for an estate which the Crown holds bona vacantia because there is no-one who has been identified within the earlier provisions in the Act as an individual who is a relative of a deceased. As is apparent, the categories of relatives fixed by this legislation are very extensive. The categories span different generations. This sub-section recognises that blood or family relationships ("whether kindred or not") is not an essential pre‑condition to obtaining provision from an intestate's estate, held bona vacantia.
In the disposition of a deceased's estate, at the time this legislation was introduced, it was well recognised that bequests or dispositions of real and personal property, could be lawfully made to charitable and not-for-profit groups including those which were incorporated.
It seems to me that s 61B(8) represents a "catch all" provision, at the end of the statutory list of categories individuals who are blood relatives (or half‑blood relatives), so as to permit the State to pay out the property of an intestate to any person, including a not-for-profit or charitable organisation, that could establish that the intestate "… might reasonably have been expected to make provision". There is no reason construe these words as only referring to individuals. Organisations, including charities and not-for-profit associations may well have reasonably expected the deceased to make provision for them.
Understood in this way, the legislation does not express any contrary intention to the application of the meaning ascribed to the word "person" by the Interpretation Act.
It follows that the reference to "person" in s 61B(8) of the Act should be taken to include a body corporate. It includes the Genesian Theatre.
Consistently with s 21 of the Interpretation Act (as in force at the relevant time), I do not consider that the provisions of the Act manifested any contrary intention. The Act did not distinguish between "persons" and "individuals", or between "persons" and "bodies corporate". Nor did the provision call for some action that could not be undertaken by a body corporate. Moreover, having regard to the purpose of the Act, it does not seem to me that the Act could not apply to bodies corporate.
The State placed a great deal of emphasis on the fact that s 61B(8) referred to natural persons who can make an application (i.e. "dependants, whether kindred or not"). This, it was said, meant that the reference to "any other persons" should be construed as referring only to natural persons, rather than bodies corporate.
I am not persuaded by this submission. The mere fact that the provision of s 61B referred to various groups of natural persons does not of itself preclude the words "any other persons" from being construed so as to include non-natural persons. In my view, this is no different from a situation in which legislation uses words such as "he" or "she", or "his" or "hers". It has been said that where such words are used, it does not necessarily preclude the words being construed to include "it" or "its", thereby extending to a body corporate: Union Steamship Co of New Zealand Ltd v Melbourne Harbour Trust Commissioners (1882) 8 VLR 167, 181.
As I have earlier said, it is not unusual for bequests or gifts of the residue of estates it be made to charitable or not-for-profit organisations such as the Genesian Theatre. Such gifts are recognised as lawful, and open to a testator to make. If the Act was to be construed in the way the defendant suggests, it would mean that no provision was made anywhere in the Act to enable this to occur from an intestate estate.
Without clear words evidencing the Parliament's intention to exclude organisations, whether incorporated or not, from making application for the property of an intestate, I am not prepared to so construe the legislation.
It follows that the plaintiff has persuaded me that it is entitled to the relief claimed.

Orders

I make the following orders: 1. Declare that upon their proper construction the words "… and any other persons …" in s 61B(8) of the Wills, Probate and Administration Act 1898, as in force at 14 February 2008, mean and include an individual, a corporation, and a body corporate. 2. Declare that the plaintiff, Genesian Theatre Company Inc, as an incorporated association, is a person within the meaning of the words "… and any other persons …" in s 61B(8) of the Wills, Probate and Administration Act 1898 as in force at 14 February 2008. 3. Each party is to pay its own costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2021

Succession Amendment (Intestacy) Act 2009(NSW)

Wills, Probate and Administration Act 1898(NSW)

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