Mann v Mann[2024] QSC 50

SUPREME COURT OF QUEENSLAND

1. [1]
   The Mann family’s cane farm at Mill Road, Edmonton was gradually surrounded by the southern creep of Cairns suburbia. It became a target of government acquisition. The Queensland Government resumed about 40 per cent of it but later gave the land back. It paid only partial compensation in the meantime. The Cairns Regional Council resumed another, smaller section, paying full compensation.
2. [2]
   The farm’s half owner, Geoffrey Mann, made a will early in that series of events, when only the State Government resumption and payment of its partial compensation had occurred. His will left his share in the Mill Road farm and two other family farms to his adult children, Graeme Peter, Stuart and Natalie. He left the residue of his estate to his wife, Nan, who was also appointed his executor.
3. [3]
   At the time of his will Geoffrey believed the Mill Road farm no longer included the 40 per cent of it resumed by the State Government but that substantial further compensation for that resumption would be received. He was not to know that, after his death, the State Government resumption would be revoked and the resumed land returned. Nor was he to know the local Council would proceed to resume a further part of the farm, paying compensation after his death. Unsurprisingly, the terms of his will did not expressly cater for the possibility of such future events.
4. [4]
   Nan and Graeme Peter disagree on how the will should be construed in connection with the outcome of those unanticipated events. Should the land returned by the State Government and the compensation paid by the Council go to the children or to Nan? Graeme Peter applies for a declaration that each form part of the property left to the children. Nan argues they each form part of the residue.^[1]
5. [5]
   Before moving to the will’s construction, it is helpful to have some understanding of the sequence of the Mill Road farm resumption and compensation events, relative to the date of the will and of death.

What was the sequence of Mill Road resumption and compensation events?

1. [6]
   The Mann family have owned a farm of varying scale at Mill Road since 1907. Geoffrey’s brother, Allan John Mann, deposes:

“Mann’s Farm was the first land ever owned by the Mann family following generations of subsistence as tenants in feudal style Scotland and was prized to such a degree that the family declared that it should never be sold or put at risk through mortgage”.

1. [7]
   Their father, Alexander, inherited the farm from his father in 1939. It was inherited by Allan and Geoffrey in equal shares on their father’s death in 1966. They together purchased additional farms without mortgaging Mann’s Farm in the 1970s.
2. [8]
   The Queensland State Government compulsory acquisition of part of the brothers’ Mill Road farm, ostensibly for a future hospital, health precinct and roads, occurred in December 2010. That resumption was of 21.567 ha of land, constituted by lots 2, 3, 5 and 6 of the land described in what became Survey Plan (ie “SP”)240391. The resumption did not include lots 1 and 4 of SP240391. It did include a resumption of a smaller homestead block, lot 9, but the detail of that is not alleged to be relevant to the parties’ present dispute.
3. [9]
   The farm had originally been 54.155 hectares. The land resumed by the State Government thus represented roughly 40 per cent of the farm. This left lot 1’s 19.848 ha and lot 4’s 12.74 ha, about 32.59 ha, as the whole of the remaining Mill Road farm owned by Geoffrey and Allan.

10. [10]
    The consequence of the State Government resumption was that at the time of Geoffrey’s will, executed on 13 October 2015, the Mill Road farm consisted of lots 1 and 4 on SP240391. As will be seen, they were the lot and plan numbers he hand-wrote into his will.
11. [11]
    The Queensland Government paid an “advance against compensation to be paid” for the resumption, in the amount of $4.364 million in December 2011. It had earlier paid an advance of $848,852 in respect of lot 9. The balance of the compensation owing remained in dispute and had not been determined or paid as at the time of Geoffrey’s willor by his death, on 13 February 2016. The evidence shows an overall amount of $29.4M had been sought, which, allowing for the partial compensation paid, meant $24M was still being sought as the balance of the State Government compensation. That may have been optimistic, but the obvious development value of the land made it realistic to expect the eventual balance of the compensation to be paid by the State government would be a substantial, multi-million dollar amount.
12. [12]
    The Cairns Regional Council’s intention to compulsorily resume part of the Mill Road farm was advised by the lodging of notices of intention to resume in July 2015, before the execution of Geoffrey’s will in October 2015. The resumption was implemented after the will’s execution, by gazetted notices in December 2015 and January 2016. The implementing of the resumption involved dividing the land in lot 1 of SP240391 into what then became lots 1, 2 and 3 of SP284229 and Council resuming lots 2 and 3 thereof. The 2.526 ha of land thus resumed by Council represented about 8 per cent of the Mill Road farm as it was after the State Government resumption. It left lot 1 with 17.3207 ha and lot 4 with 12.74 ha, a total of 30.06 ha, owned by Geoffrey and Allan. This position prevailed as at Geoffrey’s death, on 13 February 2016.
13. [13]
    Subsequent to his death the Council resumption compensation claim was settled by his estate and a compensation amount of $750,000 was received on 30 October 2017.
14. [14]
    Also, after Geoffrey’s death, the Queensland State Government revoked its resumption. This was unheralded from the perspective of the Mann’s. The only time there had been any suggestion of it as a possibility was during the Liberal National Party’s period of executive government from March 2012 to January 2015. However, the Labour party had re-affirmed its continued commitment to the southside hospital development on its return to executive government.
15. [15]
    The revocation process began on 16 June 2016, when Crown Law emailed the respondent’s lawyers, indicating that the State was prepared to revoke the resumption on the Mill Road farm, on the basis that the Manns retain the advance against compensation, that being the $4.364 million paid to them. The revocation soon proceeded on that basis, being published in the Queensland Government Gazette on 19 July 2016. What legal consequence did that have?
16. [16]
    Section 17 Acquisitions of Land Act 1981 (Qld) provides:

“17 Revocation before determination of compensation

1. If, at any time after the publication of the gazette resumption notice and before the amount of compensation to be paid in respect of the taking thereof is determined by the Land Court or the payment of compensation in respect of the taking is sooner made, it is found that the land or any part thereof is not required for the purpose for which it was taken, the Governor in Council or a gazetting authority, by gazette notice (the revoking gazette notice), may revoke the gazette resumption notice, in whole or in part.

…

2. Upon the revocation wholly or otherwise by a revoking gazette notice of any gazette resumption notice –

(a) the gazette resumption notice shall to the extent to which so revoked be deemed to be absolutely void as from the making thereof as if it had not been made.

…

4. Any person entitled to claim compensation under this Act in respect of the taking of any land may, upon the revesting of such land or part thereof pursuant to this section, claim from the constructing authority compensation for the loss or damage and (if any) costs or expenses incurred by the person in consequence of the taking of the land and prior to its revesting.” (emphasis added)

17. [17]
    The effect of s 17 is that upon the publication of the revoking gazette notice on 19 July 2016, the resumption on December 2010 was deemed absolutely void from the time of its making, “as if it had not been made.” This means the 40 percent of the Mann brothers’ farm at Mann Road thought to have been resumed by the State Government in 2010 is deemed to have continued to be owned by Geoffrey and his brother, up to and beyond the time Geoffrey made his will. Of course, Geoffrey did not know that when making his will.
18. [18]
    The revesting restored the total property owned by the estate and Geoffrey’s brother at Mill Road to about 51.6 ha, compared to the 32.59 ha Geoffrey thought it was at the time of will.^[2]
19. [19]
    That brief history of the Mill Road farm resumption and compensation events relative to the time of the will and of death may be summarised thus:

20. [20]
    This history of events assumes present relevance because of the wording of Geoffrey’s will of 13 October 2015.

What did the will say?

20. [21]
    The only two dispositive clauses were clauses 4 and 5.
21. [22]
    Clause 4 dealt with the disposition of Geoffrey’s interests in the three family farms.
22. [23]
    Clause 5 left the residuary of his estate, after meeting the estate’s debts and expenses, to his wife Nan. Its meaning is not in issue. It described the residue as:

“…all my real and personal estate, wherever it is and in whatever form it is, not otherwise disposed of by this will”

The only other property disposed of by the will was the property left by cl 4 to the children.

24. [24]
    The meaning of cl 4 is in issue. Clause 4 is headed “Specific gifts”. The ensuing content, which consists solely of cl 4.1, contains typed writing and handwriting as follows:

What issues arise for determination about the meaning of the will?

25. [25]
    Two issues of construction arise from those words.
26. [26]
    The first construction issue relates to the meaning in cl 4.1 of what real property was described in consequence of the handwritten additions after cl 4.1(a)’s typed words “Mill Road, Edmonton”. The handwritten references to “L500 SP171159” and “500L” fall away as materially relevant because they match the lot and plan numbers of other real property, namely that at “Wiseman Road, Edmonton”, referred to by the typed words of cl 4.1(b). The only lots specifically described in the handwriting that were in fact lots of Mill Road farm are lots 1 and 4 of SP240391. They were the only lots remaining after the State Government resumption. The description prompts this question for determination:

1. Is the revested part of the Mill Road farm which had purportedly been resumed by the State Government part of the Mill Road property described in cl 4.1?

27. [27]
    The second construction issue relates to the meaning of what was meant by “proceeds of sale” and “income” as later used in clause 4.1. It assumes significance in that the compensation derived from Council’s resumption of part of the land described in cl 4.1 (a) was received after Geoffrey’s death. It prompts this question for determination:

2. Is the Council resumption compensation within the meaning of “proceeds of sale” or “income” as referred to in cl 4.1?

27. [28]
    Graeme Peter contends the answer to both questions is “yes”. For the reasons which follow the answer to both questions is “no”.

What is the nature of the interpretative exercise to be undertaken?

27. [29]
    The jurisdiction to give declaratory relief of the kind here sought is conferred by s 6 Succession Act 1981 (Qld). It confers a broad jurisdiction, including to make “all such declarations … as may be necessary or convenient” in respect of all testamentary matters and matters relating to the estate and its administration. The proper construction of the will is such a matter.
28. [30]
    The court’s self-evident task in construing a will is to give meaning to the words which the testator deployed to give effect to the testator’s testamentary intention.^[3] The focus of such an exercise is necessarily upon the meaning of the words used, considered on the context of their use within the will. However, the meaning of some words of a will may not be apparent from the will’s content or may be ambiguous. Where that occurs s 33C of the Act applies.
29. [31]
    Section 33 is the Act’s variant on what is known as “the armchair principle”, by which the court has regard to evidence beyond the content of the will so as to understand the intended meaning of the testator’s language.^[4] It provides:

“33C Use of evidence to interpret a will

1. In a proceeding to interpret a will, evidence, including evidence of the testator’s intention, is admissible to help in the interpretation of the language used in the will if the language makes the will or part of it—

1. meaningless; or

2. ambiguous on the face of the will; or

3. ambiguous in the light of surrounding circumstances.

2. However, evidence of the testator’s intention is not admissible to              establish              any              of              the circumstances mentioned in subsection (1)(c).

3. This section does not prevent the admission of evidence that would otherwise be admissible in a proceeding to interpret a will.”

27. [32]
    Section 33C thus permits recourse to extrinsic evidence, including of the testator’s intention, where the will’s language is meaningless or ambiguous.
28. [33]
    Before turning to whether extrinsic evidence is admissible here, four further points of interpretative relevance should be noted:

1. It is the whole of the will which must be considered in ascertaining the meaning of the words used.^[5]

2. The ordinary meaning of words in a will should be adopted, unless the other content of the will or the context of the words’ use within the will indicates the words convey a different meaning.^[6]

3. Pursuant to s 33E of the Act, unless a contrary intention appears in the will, it takes effect in respect of property disposed of by it, “as if it had been executed immediately before the testator’s death”. However, while the will is thus said to speak from the date of death, regard should be had in construing it to the circumstances present to the mind of the testator at the time of execution.^[7]

4. Pursuant to s 33F of the Act, where part of property disposed of by a will has been disposed of before death, the will operates to dispose of such remaining interest the testator continued to have in the property.