Proper Construction

Posted on May 28, 2012 | 1 comment


scaffolding

It is not uncommon to encounter claims for rectification based on the “proper construction” of a document.  Saxby Soft Drinks v George Saxby Beverages [2009] NSWSC 1486, was one of those cases and Brereton J was asked to make a declaration as to the vesting day in a trust deed. The vesting day was defined by reference to a “royal lives” clause:

The day upon which shall expire the period of twenty-one years after the execution of this settlement or the death of the last survivor of the descendants now living of his late Majesty King George VI, which shall be the shorter [sic], or such earlier date as the trustees may at any time … in writing or by oral declaration appoint

The deed had been executed in 1982 and by the mid-2000’s an issue had been raised by a financier whether the trust had already vested. His Honour said the whole purpose of a royal lives clause is to allow a trust to operate for the longest possible time. Accordingly, he had no problems in declaring that upon the proper construction of the definition of vesting date in the trust deed “shorter” means “longer”.

Doh!

Creative commons acknowledgement for the photograph.

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1 Comment

  1. Did His Honour have any difficulty expressing that thought? Of course, let’s not forget that shorter and longer are but the two sides of the same coin. It depends on where the observer is, as Einstein explained in his theory on Special Relativity

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