Tanner v Tanner

1. [1]

   BELL CJ: I agree with Stern JA.

2. [2]

   STERN JA: This appeal concerns the proper construction of a will executed by Hilda Marion Tanner (the deceased) on 16 December 2021 (the will). The deceased was the mother of the appellant, John Tanner. She died on 19 May 2024. On 15 August 2024 probate was granted to her other two children, James Tanner and Susan Travers, the respondents and the executors of the will. The inventory of property attached to the grant of probate valued the deceased’s estate at $2,593,766.13.

3. [3]

   For convenience, and without intending any disrespect, I will refer to members of the deceased’s family by their first names.

4. [4]

   The relevant clauses of the will are as follows:

5. [5]

   There is no dispute that the parcel of land referred to in cl 5 of the will (the Blandford property) was transferred by the deceased and her husband, Craig Tanner, to John and his wife on 16 January 2001 (the transfer). It is also common ground that, for present purposes, the value of the Blandford property is $825,000 (as valued as at 19 May 2024, being the date of the deceased’s death, by Michael Wragge, Certified Practising Valuer, retained by the respondents).

6. [6]

   The essence of John’s contention before the primary judge was that, on the proper construction of the will, cl 3(c) was not qualified by cl 5 and he was thus entitled to a one-third share in the deceased’s residual estate.

7. [7]

   In a decision handed down on 19 September 2025 the primary judge rejected John’s claim: Estate of Tanner [2025] NSWSC 1078. Her Honour made the following declaration:

8. [8]

   The overarching issue raised in the appeal is whether the primary judge erred in finding that John’s one-third share of the deceased’s residuary estate under cl 3(c) of the will was to be adjusted as directed in cl 5 of the will, to bring into account the value of the Blandford property. In this regard, by amended notice of appeal John contends that the primary judge erred in:

   1. (1)

      finding that she was not required to decide whether the transfer of the Blandford property in 2001 was a gift or advancement to the appellant (ground 1);

   2. (2)

      her approach to the evidence and to John’s submission that an acknowledgement that consideration of $100,000 was paid for the transfer in the memorandum of transfer of the Blandford property in 2001 (the acknowledgement) was uncontested evidence that consideration was paid for the transfer (grounds 2, 3 and 4);

   3. (3)

      finding that the transfer was an advancement or gift so as to give rise to the “hotchpot doctrine” (ground 5); and

   4. (4)

      construing the gift to John in cl 3(c) of the will as being qualified by the terms of cll 4 and 5 (ground 6).

9. [9]

   The outcome of this appeal ultimately turns upon the unambiguous meaning of the will construed having regard to relevant surrounding circumstances. However, given the matters raised in the grounds of appeal it is necessary in this judgment also to examine how the proceedings before the primary judge were conducted, in particular, as regards the factual issue whether or not, in 2001, the Blandford property was gifted by the deceased and Craig to John and his wife.

10. [10]

    For the reasons set out below, the appeal should be dismissed with costs.

Factual Background

1. [11]

   There is no dispute as to the validity of the will.

2. [12]

   John read an affidavit affirmed on 2 April 2025 before the primary judge. In that affidavit he identified at [4] that in 2001 the Blandford property was part of a property owned by his parents, known as Eyton. He then said at [5]:

3. [13]

   That is all that John said in his affidavit that bore on the issue whether there was any consideration in fact paid for the transfer. In circumstances in which John would surely have known what, if any, consideration was actually paid for the transfer, the fact that he did not say anything on this subject beyond reiterating the terms of the acknowledgement is, to say the least, curious. As Gleeson CJ said in Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [11], a fundamental precept of the adversarial system of justice is Lord Mansfield’s proposition in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. The carefully worded phrasing of John’s affidavit evidence on the factual issue of the consideration for the transfer can properly be taken into account when considering whether he had produced evidence to satisfy his burden of proof: see, by analogy, Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [256] (Heydon J).

4. [14]

   The terms of the acknowledgement, in the memorandum of transfer annexed to John’s affidavit, are as follows:

5. [15]

   Consistent with Petersen v Moloney (1951) 84 CLR 91 at 100; [1951] HCA 57, an acknowledgement of the receipt of consideration in a transfer may be prima facie evidence, the weight of which depends upon the circumstances, that money was received. By way of example, in Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 at [74]-[81], Leeming JA (Macfarlan JA agreeing) treated moneys as not having been paid to the borrowers notwithstanding an acknowledgement of receipt by them in a mortgage. Moreover, in Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [51]-[61] Leeming JA described Petersen v Moloney as stating the law in Australia and concluded, relying in part upon Lord Mansfield’s proposition in Blatch v Archer as extracted above at [13], that it was open to the primary judge in that case to find that money was not paid notwithstanding a signed document on a public register which acknowledged receipt of the money as consideration.

6. [16]

   On 16 November 2004, Craig made his last will and testament. Whilst nothing ultimately turns on this, Craig’s will included clauses in broadly similar terms to cll 3(c) and 5 of the will, which took effect only if the deceased predeceased him. Craig died on 14 May 2008 and, as such, consistent with his will, his residual estate went to the deceased.

7. [17]

   John has not sold or otherwise encumbered the Blandford property since it was transferred to him and his wife in 2001.

8. [18]

   A distribution statement prepared by the respondents’ solicitors on 16 December 2024 calculated the total amount available for distribution from the deceased’s estate. The methodology used was to identify the balance of funds held in trust, less pecuniary legacies in cll 3(a) and (b) of the will ($1,152,148.71); plus the value of the deceased’s share portfolio as at 2 December 2024 ($1,261,806.73); and to add to that a notional credit for the value of the Blandford property transferred to John in 2001 ($825,000) and for funds advanced to James falling within cl 4 of the will ($399,497). This gave a notional total amount available for distribution of $3,638,452.44.

9. [19]

   John disputed the correctness of this approach, ultimately filing a summons on 3 April 2025 seeking relief including a declaration that, contrary to what was proposed by James and Susan, after the payment of the legacies in cll 3(a) and (b) of the will and reasonable administration costs he was entitled to an equal one-third share in the deceased’s residuary estate, and an order that James and Susan forthwith do all things reasonably necessary to effect payment of this to him.

Conduct of the proceedings before the primary judge

1. [20]

   In written submissions filed on 20 August 2025, John referred to the transfer but was silent as to whether it was a gift or was for consideration. He submitted that the will was unambiguous. He contended that the expressed intention of cl 3(c) of the will was that he take an equal share of the residuary estate and that the deceased had no power to make the direction she purported to make in cl 5 of the will because she could not dispose by will of property she did not own. He also submitted that a direction such as that in cl 5 could not be construed to contradict or diminish the clear and unambiguous gift in cl 3(c).

2. [21]

   In written submissions, also filed on 20 August 2025, the respondents submitted that there was no ambiguity as to the terms of the will and that, on its proper construction, the will provided that the value of the Blandford property ($825,000) was to be deducted from John’s one-third share in the residue of the deceased’s estate. As regards the transfer, the respondents submitted:

3. [22]

   At the hearing before the primary judge on 25 August 2025, John read his affidavit (including the annexed memorandum of transfer) but did not seek to adduce evidence to clarify this factual issue raised by the respondents.

4. [23]

   Five aspects of the parties’ oral submissions before the primary judge should be noted.

5. [24]

   First, there was no dispute as to the key principles applicable to the construction of a will, and in particular, that the leading authorities in this regard were Perrin v Morgan [1943] AC 399 at 406, 416; [1943] 1 All ER 187, and Fell v Fell (1922) 31 CLR 268 at 273-275; [1922] HCA 55.

6. [25]

   Second, both John and the respondents submitted that there was no ambiguity in the will, including as regards cll 3(c) and 5. John’s submission was, however, that the Court had to apply the words the deceased used, that cl 5 could not contradict the gift “already made” in cl 3(c), and that cl 5 purported to do something that the deceased had no power to do because she did not own the Blandford property at the time of her death.

7. [26]

   Third, the hearing before the primary judge was conducted on the common premise that the Blandford property had been gifted to John and his wife. John’s counsel consistently referred to the transfer as a “gift”. Early in his opening submissions he submitted “[s]he made a gift of property 20 years ago and partly with her husband” and “[i]rrespective of whether the sum of $100,000 was paid or not paid there is a presumption of events in any event. The gift, or I will call it a short transfer if I can use a neutral terms [sic], was made back then”. He submitted that the deceased “could have left a particular bequest to the other two [children] to take into account the gift she had already given to John 20 years prior”. He added that in cl 5 the deceased was “trying to say, ‘because I gave him the property back in 2001, I want that to come off’”, that she was “purporting … to bequeath something that she has already given”, and later, “[h]ow can she now talk about property, which was given, certainly in part, by someone else? That is the point. It wasn’t hers. You accept it is a gift in some ways, but it wasn’t a gift by her”. In his oral submissions in reply, as regards the Blandford property, he twice submitted that the testator had “given it away”.

8. [27]

   His oral submissions in chief concluded with the submission:

9. [28]

   Counsel for the respondents also referred to the Blandford property as having been gifted by the deceased and her late husband jointly but also contended that, “[w]hether that’s right or wrong is, in my submission, immaterial”.

10. [29]

    Before making these submissions, counsel for John was aware that the respondents intended to rely upon Re Tennant; Mortlock v Hawker (1942) 65 CLR 473; [1942] HCA 3, as he was informed of that on the morning of the hearing and told the primary judge that he had “had a look at [Re Tennant]” that morning. Indeed, before concluding his oral submissions in chief, he submitted:

11. [30]

    Moreover, John’s counsel’s oral submissions in reply that the transfer was a gift were made after counsel for the respondents had orally submitted that the judgment of Dixon J in Re Tennant at 475-476 supported both the respondents’ proposed construction of the will and that the deceased had power to give the direction she did in cl 5 of the will.

12. [31]

    Whilst the outcome of this appeal does not turn on this, and the primary judge did not make any finding to this effect, in circumstances where the respondents’ written submissions had raised the question whether or not the transfer was a gift (see above at [21]), and the onus on this issue rested on John, John’s repeated submission before the primary judge that the transfer was a gift amounted to an admission that that was in fact the case. That had the consequence that (unless and until the admission was withdrawn) that factual question was no longer in issue between the parties: Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 at [154].

13. [32]

    Counsel has authority to make admissions against the interests of his or her client during a hearing: Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369 at [17]-[18]; Urquhart v Butterfield (1887) 37 Ch D 357 at 369; Dunn v Brown (1911) 12 SR (NSW) 22 at 41; JD Heydon, Cross on Evidence (LexisNexis, 14th ed, 2024) at [3165]. An admission by counsel is “conclusive as far as it goes if not withdrawn”: Dunn v Brown at 51; see also AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 427 ALR 67 at [60]-[63] (Gageler CJ, Jagot and Beech-Jones JJ). Further, a court is entitled to act upon such an admission, at least where there is no reason to doubt its correctness: Damberg v Damberg at [157], [160]. Given the very careful terms in which John phrased his affidavit at [5] and the principles set out in Blatch v Archer, the statement on the memorandum of transfer that consideration was received for the transfer was not, itself, reason to doubt the correctness of John’s admission, through counsel, that the transfer was a gift.

14. [33]

    Thus, whilst the primary judge was not bound to act on the admission, in circumstances in which leave was not sought to withdraw the admission, her Honour would have been entitled to do so.

15. [34]

    Fourth, as already adverted to, in his oral submissions, counsel for the respondents relied upon Re Tennant. He submitted that “the important thing” about Re Tennant in the present case was that:

16. [35]

    He placed particular reliance upon the following passage from the judgment of Dixon J in Re Tennant at 487:

17. [36]

    In light of these oral submissions, and the fact that Re Tennant had not been relied upon in the respondents’ written submissions, the primary judge indicated that she would be assisted by a note which gave some legal context to the respondents’ oral submissions, including as to the hotchpot doctrine and its abolition, and how these matters fit with the respondents’ written submissions. Her Honour offered to give John’s counsel time to answer the respondents’ oral submissions, but he indicated that he could respond to the respondents’ submissions in the course of his oral submissions in reply. He did so, submitting that the hotchpot doctrine was abolished by statute, “and so then you’re driven back to the meaning of … what the will says”.

18. [37]

    Her Honour then indicated that she would “like more fulsome written submissions having regard to [the] whole of the legal, context, including any statutory amendments or impacts” and also “where the [hotchpot] submissions you’re making fit in with the context of your written submissions”. She granted leave to both parties to file supplementary submissions “on the [hotchpot] provisions” and, at the request of counsel for the respondents, “other issues raised in the oral submissions by counsel for the plaintiff”.

19. [38]

    By way of context to her Honour’s orders, the legal concept of hotchpot broadly reflects the maxim ‘equality is equity’, supplemented by the maxim ‘he who seeks equity must do equity’: Caron v Jahani (No 2) (2020) 102 NSWLR 537; [2020] NSWCA 117 at [56]-[58] (Bell P, Bathurst CJ and Macfarlan JA agreeing), citing with approval Australian Securities and Investments Commission v Idylic Solutions Ltd [2009] NSWSC 1306; 76 ACSR 129 at [60]. This concept has been applied in a number of legal contexts to require a “bringing into account” of benefits received, for example, as between co-sureties and in bankruptcy: Idylic Solutions at [56]-[59]. As regard wills, the doctrine of hotchpot was applied by statute, but only as regards intestate estates, where gifts were made to beneficiaries during a testator’s lifetime: s 5 of the Statute of Distribution 1670 (22 & 23 Cha 2 c 10); Coleman v Lake (1903) 3 SR (NSW) 603; Maiden v Maxwell (1920) 21 SR (NSW) 16. That rule was abolished in New South Wales in 1977: Wills, Probate and Administration (Amendment) Act 1977 (NSW).

20. [39]

    Fifth, responding to the primary judge’s request and the leave granted, the respondents commenced their supplementary written submissions with the heading “The Abolishment of Hotchpot Rule: a non-issue”, summarised the history of the doctrine and its abolishment at [1]-[3], and submitted at [4] that “neither the doctrine itself or its abolishment affect the present proceedings or detract from the High Court’s reasons in Re Tennant”. The respondents then submitted, in summary, that:

    1. (1)

       cll 3(c), 4 and 5 of the will were clear: cll 4 and 5 directed that certain advances be taken in satisfaction of the gifts in cl 3(c) and that this was the “only construction available on the document”; and

    2. (2)

       the judgment of Dixon J in Re Tennant at 487 supported their submission that the deceased had the power to direct in the will that certain advances in her lifetime be brought into account in satisfaction to that extent of the gift in John’s favour in cl 3(c) of the will. They submitted that the will in Re Tennant contained similar provisions to, and gave “guidance and context” to, the clauses in the will in the present case because, as in this case, the residue clause in Re Tennant was not itself expressed to be qualified by any subsequent directions. In Re Tennant at 491-492 Dixon J had observed that directions that advances be brought into hotchpot may take varying forms, including that they be “taken in satisfaction” or “brought into account” and that, “[w]ith all such expressions it is natural to understand the direction as referring to a ‘deduction’ from, ‘satisfaction’ of, or ‘accounting’ against a money fund”.

21. [40]

    In this way, as with the respondents’ oral submissions before the primary judge, the respondents’ supplementary written submissions did not rely upon any “doctrine” of hotchpot.

22. [41]

    In his responsive supplementary written submissions, John also summarised the history of the development and abolishment of the doctrine of hotchpot. Then, under the heading “Response to Defendants’ Supplementary Written Submissions”, he made the following contentions:

23. [42]

    The contention in these submissions at [10] that the transfer was not a gift was inconsistent with the premise upon which both parties had conducted the hearing before the primary judge. John made no reference to this inconsistency in his supplementary written submissions. He offered no explanation as to why, up until the filing of the supplementary written submissions, he had repeatedly submitted that the transfer was a gift if that was not in fact the case. He did not seek leave to adduce supplementary evidence on this factual issue. Nor did he seek leave to withdraw the admission made in the course of the hearing before her Honour.

24. [43]

    His submission that the transfer was not a gift also fell beyond the grant of leave her Honour gave for submissions to be filed after the hearing. It went well beyond elaboration of his oral submissions on the hotchpot provisions, or responding to the respondents’ submissions on Re Tennant, and did not arise out of his own oral submissions. A party is not at liberty to file submissions after the conclusion of a hearing other than with the leave of the court, as Mason J observed in Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 257-258; [1981] HCA 20; see also Wollongong City Council v Legal Business Centre Pty Limited (No 2) [2012] NSWCA 366 at [32]. The primary judge would have been entitled to reject those submissions on that basis, albeit that, as set out below, her Honour did not rely upon her limited grant of leave in her reasons for not considering these submissions.

25. [44]

    As to John’s contention at [11] of his supplementary written submissions regarding the directions in the second and third sentences in cl 5 of the will, which go to the mechanics of how the Blandford property was to be valued when being “brought into account” or “taken in satisfaction” for the purposes of cl 3(c), this was also beyond the grant of leave to file supplementary written submissions. It was also a submission which had not been advanced, even indirectly, before the primary judge. Nor did John articulate why it was that the directions in the second and third sentences in cl 5 of the will “[could] not be made”.

26. [45]

    Further, John did not in these submissions explicitly contend that a direction such as that made in cl 5 of the will, or in Re Tennant, could only take effect as regards a gift made by the testator during his or her lifetime. Nor did he make any attempt to support this contention with any authority or by reference to any legal principle. In any event, if such a submission were to be advanced in supplementary written submissions filed after the hearing, then it should have been clearly articulated.

Re Tennant

1. [46]

   Before turning to the primary judgment it is convenient to explain both the factual context of Re Tennant and some key aspects of the judgments in that case.

2. [47]

   The deceased, Andrew Tennant, made a will in which he provided that residuary funds in trust should be held “for all my [children] in equal shares”. He also directed that “the value of any land shares or property transferred by me in my lifetime to any child of mine … shall be taken as part of the share to which any such child is entitled under this my will and my Trustees shall accordingly deduct the value thereof from the share or portion to which such child is entitled under this my will” and made a similar direction as regards money. The directions were referred to in the submissions and judgments in Re Tennant as the “hotchpot clause” (and I will refer to them in the same way). The will also included directions as to how such land, shares or property should be valued for the purpose of the hotchpot clause, including directing that one property should be valued for this purpose at a particular sum even if sold for more during Mr Tennant’s lifetime, but the will was silent as to the date of valuation, the timing of the ascertainment of proportions and as to the treatment of interest. The issues on appeal were as to the mechanics of giving effect to Mr Tennant’s directions, not as to whether, or the circumstances in which, the hotchpot clause was valid and effective.

3. [48]

   Whilst observations were made in Re Tennant as to the “intention of a testator in inserting a hotchpot clause in his will” being “that there shall be a fair division among his children, and that they shall be equal inter se” and as to the manifest intention of Mr Tennant being to secure equality between his children (Rich J at 482; McTiernan J at 508), ultimately the question of construction raised turned on Mr Tennant’s intention as expressed in the will (Rich J at 482, 484-485; Dixon J at 489, 495, 497, 506; McTiernan J at 508-510).

4. [49]

   Before the primary judge the respondents relied in particular upon the judgment of Dixon J at 487 (at [39] above). On the issue of construction, Dixon J also observed at 491-492 that:

5. [50]

   By way of context, the money and property the subject of the directions in Re Tennant had been given by Mr Tennant to some of his children by way of advancement. That was the factual premise upon which that case was decided. Having regard to that factual premise, there is no basis to read references in the judgments in Re Tennant to the hotchpot clause relating to a “gift or gifts” as if the effect of such a clause is limited to gifts made during a testator’s life. Nor is there any basis to read the judgments as limiting the effect of hotchpot clauses to circumstances in which such a clause in fact achieves equality as between beneficiaries. Thus, for example, no question was raised by the Court as to whether the value which Mr Tennant directed be given to one of the properties dealt with in the hotchpot clause did or did not in fact achieve equality between the beneficiaries.

6. [51]

   As is apparent, the analysis and outcome in Re Tennant turned upon the meaning to be given to Mr Tennant’s will. It is a case about construction, not about supervening principles which somehow expand, or contract, what could otherwise be achieved by the clear words of a will. More particularly, contrary to John’s submission, it is not a case that turns on the application of either a “doctrine” of hotchpot, or upon any equitable doctrine or principle.

7. [52]

   The respondents also referred this Court to a decision of Jenkins J in Prichard v Prichard [2015] WASC 170. The testator in that case left the balance of his estate on trust for his five children, as tenants in common in equal shares but declared that:

8. [53]

   A list of advances for this purpose was attached as a schedule to the will.

9. [54]

   Consistent with the approach taken in Re Tennant, Jenkins J in Prichard v Prichard at [46] held that “a hotchpot clause must be construed according to its terms and in light of the circumstances in which it was made”. Having regard to the language of the will, which her Honour held at [55] was “clear”, at [54]-[55] she rejected the contention of one of the testator’s children that an advance that had been made for consideration could not be brought into hotchpot under the will.

Primary judgment

1. [55]

   The primary judge approached the case as one turning on the proper construction of the will. Her Honour upheld the construction of the will contended for by the respondents, finding that the words in cl 3(c) were qualified by the directions in cll 4 and 5. In this regard, there was no dispute before her Honour that she should approach the issue of construction by reference to the well-established authorities of Perrin v Morgan at 406, 416, Fell v Fell at 273-275, and De Lorenzo v De Lorenzo (2020) 104 NSWLR 155; [2020] NSWCA 351 at [50], as summarised by Richmond J in Estate of Chaddock (Deceased) [2025] NSWSC 463 at [22]-[29].

2. [56]

   Her Honour accepted the respondents’ submission that, in construing the will, she was not required to make a finding as to whether or not the transfer was a gift and therefore made no finding on this factual issue, holding that it was an issue that “does not influence the resolution of this dispute”. Her Honour also observed that, in any event, “there would have been a very slim evidentiary basis on which the Court would have been able to consider this issue”. Her Honour referred to the multiple instances in which John submitted that the transfer was a gift (citing many of the references at [26] above) and observed that:

3. [57]

   In making this observation, her Honour was plainly aware of John’s affidavit evidence which went no further than reciting what was recorded on the memorandum of transfer.

4. [58]

   Her Honour then addressed the proper construction of the will taken as a whole. Her Honour noted that both John and the respondents submitted that there was no ambiguity in cl 5 of the will, and her Honour was also of that view. Her Honour rejected John’s contention that the deceased had no power to give the direction in cl 5 as she did not have a proprietary interest in the Blandford property at the time of her death, and found that cl 5 was not seeking to confer an interest in property but was, rather, directing that property previously advanced be brought into account.

5. [59]

   Her Honour approached the issue of construction on the “armchair principle” referred to in the speech of Lord Romer in Perrin v Morgan at 420. On that basis she held that, on construction, she could take account of a number of facts that the deceased could objectively be taken to have known, including the transfer, and that the signed memorandum of transfer recorded that the transferors acknowledged receipt of the consideration of $100,000. It is thus clear that her Honour took that evidence into account.

6. [60]

   Consistent with what was done in Re Tennant, her Honour used the label “hotchpot”, or “equalisation” clause to describe cl 5 of the will. Her Honour added that, as illustrated by Re Tennant, equalisation clauses “may arise in circumstances where there have been inter vivos transfers (or gifts) in the course of a testator’s lifetime”. Nothing should be read into her Honour’s use of such labels as her Honour was doing no more than reflecting her view that the purpose and effect of cl 5 was to adjust, or qualify, the gift made in cl 3(c) of the will by reference to a transfer made during the deceased’s lifetime.

7. [61]

   Her Honour referred to the respondents’ submissions as to the relevance of Re Tennant (including the submissions set out at [39]-[45] above), and noted that John did not appear to challenge the relevance of the legal principles in Re Tennant, but rather focussed his supplementary written submissions on factual assumptions made by the respondents, with reference to John’s supplementary written submissions set out at [40] above. Her Honour found that her construction of the will was:

8. [62]

   Having reached her conclusion as to construction, her Honour focussed upon the parties’ supplementary written submissions, in particular, John’s submission set out at [41] above that, as her Honour put it, “appear[ed] to invite an inference that consideration was actually paid” for the transfer. Her Honour responded to these submissions in three ways.

9. [63]

   First, by reference to the evidence, noting that there was no evidence before the Court that “consideration was in fact paid” for the transfer and referring, again, to the careful phrasing of John’s affidavit evidence on this point. In making this observation, her Honour was plainly aware of the terms of the memorandum of transfer (which she referred to in the next paragraph of her judgment and which was the subject of John’s affidavit evidence in this regard). Thus, her Honour should be understood here as drawing a distinction between what appeared on the face of the memorandum of transfer and evidence directly addressing the factual issue whether John and/or his wife actually paid any consideration for the transfer.

10. [64]

    Second, by reference to the way in which the proceedings had been conducted prior to the filing of John’s supplementary written submissions. As to this, her Honour said that:

11. [65]

    Her Honour held that “[f]rom the perspective of procedural fairness alone it would not be appropriate for the Court to engage with this part of [John’s] submissions, in circumstances where [he] ha[d] had ample opportunity otherwise fairly and explicitly to raise [that] issue”. It is clear that, here, her Honour was referring the “the issue” of whether John paid consideration for the transfer. Whilst her Honour said that she did “not propose to deal with these submissions”, she added that she did not accept the accuracy of John’s reference to the memorandum of transfer being “uncontested evidence”, referring in this regard to the fact that there was no evidence that any consideration was actually paid and to counsel for John’s use of the term “gift” as describing the transfer in his oral submissions.

12. [66]

    Third, and in any event, her Honour held that it was immaterial whether the deceased was “right or wrong when she referred to the Transfer as a ‘gift’”. Given that the deceased did not, in the will, refer to the transfer as a gift, and read in context, her Honour was plainly holding here that it was immaterial to the outcome of the case whether the transfer was in fact a gift. That holding was consistent with her Honour’s earlier finding (at [56] above) to this effect.

Consideration of the grounds of appeal

1. [67]

   For convenience, in this part of my judgment I will refer to clauses such as those in cll 4 and 5 of the will, or considered by the Court in Re Tennant, as “hotchpot clauses”. However, consistent with my reasons, nothing flows from the adoption or use of such labels.

2. [68]

   Given the matters raised, I propose to deal with the grounds of appeal raised by John adopting the numbering used in the notice of appeal, but out of the numerical order in which they appear.

3. [69]

   In ground 1 John contends that the question whether the transfer was a gift, advance or settlement was critical in determining whether the hotchpot clauses were relevant to the construction of the deceased’s will. As counsel for John confirmed in his oral submissions, the underlying premise of this contention is that cl 5 of the will is unambiguous but must be put to one side if consideration was in fact paid for the transfer. This flows from John’s key contention that the deceased only had power to make a direction such as that made in cl 5 of the will as regards gifts and not as regards a transfer for which consideration was paid. This contention, in turn, rests upon John’s submission (which I have already rejected at [51] above) that Re Tennant reflects an exception to what would otherwise be the case, and is premised upon a hotchpot clause achieving equality when a gift has been made by the testator during their lifetime to one of the beneficiaries of the testator’s residuary estate. John thus contends that the primary judge erred in finding that it was unnecessary to reach any finding as to whether or not the transfer was a gift.

4. [70]

   John’s contention should be rejected.

5. [71]

   Consistent with the first and second principles set out by Isaacs J in Fell v Fell at 69-70, the meaning of the will is to be ascertained from the language used, having regard to the will as a whole. That is so irrespective of whether cll 4 and 5 are described as “hotchpot” or “equalising” clauses. Such labels, or descriptions, do not curtail the testator’s power to make provision in a will providing for how an estate is to be distributed after their death, nor do they curtail or dictate the available construction of such clauses. The task of the court remains one of ascertaining the meaning of the will as a whole.

6. [72]

   Counsel for John candidly accepted during his oral submissions before this Court that he was not aware of any case which supported the proposition that property transferred during a testator’s lifetime can only be the subject of a hotchpot clause if it was transferred by way of gift.

7. [73]

   John sought, instead, to locate support for his contention in ground 1 in the references by the Court in Re Tennant to the testator’s direction in the hotchpot clause covering “gifts” made during Mr Tennant’s lifetime (as noted above at [50]). However, as I have already explained, there is nothing in Re Tennant to indicate that either the approach to construction, or the outcome, in that case turned on the transfers made during Mr Tennant’s lifetime to his children being gifts. Nor, as a matter of principle, is there any reason why this would be so. Just as it was open to Mr Tennant to direct that one of his properties should be valued for the purpose of the hotchpot clause at a particular sum irrespective of whether it had been sold for more during his lifetime, it is open to a testator to direct that a particular transfer be the subject of a hotchpot clause even if made for consideration. Prichard v Prichard, while not binding on this Court, is an illustration of such a case.

8. [74]

   To the extent that John contends that the construction and outcome in Re Tennant were dependent upon the hotchpot clause in fact achieving equality as between the beneficiaries of Mr Tennant’s residuary estate, that contention is misplaced for the reasons set out at [48]-[50] above, namely, that that was subject always to the intention disclosed by the will. Had the validity and effect of the hotchpot clause in Re Tennant turned upon the clause actually achieving equality as between the beneficiaries, then it would not have been permitted to stand without some enquiry as to whether the prescribed value of one of the properties to which the clause related reflected its actual value.

9. [75]

   As noted above at [61], her Honour observed that her construction of the will was “in keeping with the construction contended for by the [respondents], which includes reference to the ‘hotchpot doctrine’” and that it was also supported by the reasoning of Dixon J in Re Tennant at 487. That observation must be read having regard to the respondents’ supplementary written submissions as to the relevance of Re Tennant which her Honour extracted in her judgment (and which I have summarised at [39] above). So read, her Honour’s references to the hotchpot doctrine and Re Tennant suggest nothing more than an acceptance of the respondents’ supplementary submissions, which were not in any sense predicated upon the transfer being characterised as a gift or upon any doctrine of hotchpot. In that context, her Honour’s reference to the “hotchpot doctrine” should be read simply as a reference to the approach taken by the High Court in Re Tennant to the construction of a hotchpot clause, in particular, that it could qualify an earlier clause in a will dealing with the division of a residuary estate even if there were no words of qualification in that earlier clause.

10. [76]

    Moreover, as is apparent from the analysis of Re Tennant at [46]-[54] above, her Honour was correct to find that her construction of the will was supported by the judgment of Dixon J in Re Tennant at 487, in which his Honour confirmed that the effect of a later direction in a hotchpot clause is that it qualifies a gift made in the will. That is inconsistent with John’s contention that cl 5 “contradicted” cl 3(c) of the will in this case.

11. [77]

    It is also of significance that cl 5 of the will directed that the Blandford property was to be “treated as an advancement to John”. That language makes it clear that cl 5 is not in any way dependent upon the transfer in fact being a gift, advancement or settlement. In these circumstances, there was no error in her Honour finding that cl 5 applied to the transfer irrespective of whether it was a gift.

12. [78]

    To the extent that her Honour did not deal expressly with John’s contention before this Court that a hotchpot clause can only operate as regards a gift, that is of no moment for three reasons, each of which independently supports the correctness of her approach. First, her Honour rested her decision on the unambiguous language of the will and the support that Re Tennant gave for her construction of the will and her conclusion in this regard was, for the reasons I have already given and those set out below as regards ground 6, correct. Second, her Honour expressly declined to deal with John’s contention in his supplementary written submissions that the transfer was not a gift. Third, no such submission was ever clearly articulated before her (see [41]-[45] above).

13. [79]

    Ground 1 should be rejected.

14. [80]

    In ground 6 John challenges her Honour’s construction of the will, in particular, her conclusion that cl 3(c) is qualified by the direction in cl 5.

15. [81]

    As reflected in the position taken by the parties both at first instance and on appeal, and as found by the primary judge, the terms of cl 5 of the will are clear. They unambiguously require that the value of the Blandford property (calculated as directed) be “brought into account and taken in satisfaction to that extent of the gift in [John’s] favour in Clause [3](c)”. Contrary to John’s submission, this is so irrespective of the fact that the qualification to the effect of cl 3(c) comes not from the language of that sub-clause, but from the language of the will as a whole.

16. [82]

    John’s submissions to the contrary rest on two propositions which, he says, mean that, notwithstanding the unambiguous language used, the deceased could not do what she purported to do in cl 5 of the will. First, he submits that the deceased could not make a direction in her will in respect of property she did not own. This submission should be rejected. In cl 5 the deceased was not seeking to dispose of, or distribute the proceeds of, the Blandford property. She was simply directing as to how the value of that property should be brought into account in the distribution of her residuary estate. No reason was advanced by John why the deceased was not able to do that in her will. Second, John submits the deceased had no power to make directions in respect of property which was not an advancement, gift or settlement. I have already rejected that contention.

17. [83]

    Her Honour’s conclusion as to construction was clearly correct. This is particularly so given that, as John accepts, on his construction of the will, cll 4 and 5 have no work to do.

18. [84]

    Ground 6 should be rejected.

19. [85]

    John’s counsel accepted in oral submissions before this Court that his appeal must fail if the primary judge was correct to find that cl 3(c) of the will was subject to cl 5. It follows from my conclusion as to construction, set out above, that that is the case. Notwithstanding this, consistent with Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12] and Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8], I will deal with the remaining grounds of appeal.

20. [86]

    In ground 5 John contends that the primary judge found that the transfer was an advancement, gift or settlement. That contention can be dealt with briefly. Her Honour made no such finding. Her Honour found that that transfer fell within the ambit of cl 5 irrespective of whether it was a gift.

21. [87]

    Ground 5 should be rejected.

22. [88]

    In ground 2 John challenges the primary judge’s holding that “there was no evidence before the Court that any consideration was in fact paid for the [t]ransfer”. John contends that this finding was erroneous having regard to the acknowledgement of receipt of consideration of $100,000 on the memorandum of transfer and that her Honour erred in dismissing or ignoring that evidence.

23. [89]

    As I have already noted, her Honour did not ignore that evidence. Her Honour expressly referred to it on a number of occasions and found that it was one of the surrounding circumstances to which regard should be had on construction of the will. Moreover, as I explain at [63] above, in making the finding John seeks to impugn in ground 2, her Honour’s focus was upon the absence of any evidence going to the actual fact of payment being made, drawing a distinction between that fact and the acknowledgement of receipt recorded on the memorandum of transfer. Her Honour did not err in drawing that distinction, to which she attached some significance, bearing in mind the careful phrasing of John’s affidavit at [5].

24. [90]

    Ground 2 should be rejected.

25. [91]

    In ground 3, John challenges the primary judge’s holding that it was not appropriate for her Honour to engage with that part of his supplementary written submissions where he contended that the consideration recorded on the memorandum of transfer was actually paid (see above at [40]). He contends that her Honour erred in finding that the respondents had had no opportunity to respond to those submissions as, he submits, there was nothing to stop the respondents from seeking leave to submit further submissions and/or leave to adduce further evidence.

26. [92]

    The short, and conclusive, answer to this contention is that nothing turns upon her Honour’s conclusion in this regard, in circumstances where her Honour correctly held that the outcome of the case did not turn upon whether the transfer was or was not a gift. That was one of the three, independent, reasons her Honour gave for rejecting John’s supplementary written submissions in this regard (see [63]-[66] above).

27. [93]

    In any event, her Honour did not err in declining to consider the issue, raised for the first time in John’s supplementary written submissions, as to whether the transfer was a gift. It was highly unsatisfactory for that factual issue to be raised in supplementary written submissions filed after the hearing in circumstances where the proceedings had been conducted up until that point in time on the basis that it was a gift and where her Honour did not grant leave for this factual issue to be raised in supplementary written submissions. If John had alleged in his written submissions before the hearing, or in oral submissions at the hearing, that the transfer was not a gift, such that the factual issue whether the transfer was a gift had been live, the respondents may have, for example, sought to cross-examine John on the issue. In these circumstances, her Honour did not err in declining to engage with John’s supplementary written submissions insofar as they were premised on the transfer not being a gift and in, correctly, observing that the respondents had had no opportunity to respond to that submission. That was, in fact, the case. That is so irrespective of whether some attempt could have been made by the respondents to seek that the proceedings be reopened in order to ventilate the factual issue whether or not the transfer was a gift.

28. [94]

    Ground 3 should be rejected.

29. [95]

    Had it been necessary to do so, I would have rejected ground 3 on the separate basis that (for the reasons set out at [26]-[33] above) John’s counsel’s repeated submission that the transfer was a gift constituted an admission and that he did not seek leave to withdraw that admission.

30. [96]

    In ground 4 John contends that the primary judge erred in not finding that the memorandum of transfer was uncontested evidence of the receipt by the deceased and Craig of the sum of $100,000 as consideration for the transfer. Her Honour’s finding in this regard is set out at [65] above.

31. [97]

    Her Honour’s finding was premised upon two matters. First, that there was no evidence before the Court that consideration was actually paid. Second, that the proceedings had been conducted by John on the premise that the transfer was a gift. In light of these matters, and in light of the principles discussed at [15] above, her Honour was correct not to accept John’s contention that there was “uncontested” evidence that consideration was in fact received for the transfer. John conducted the proceedings at all times until the filing of his supplementary written submissions on the premise that the transfer was a gift in circumstances where that factual issue was raised in the respondents’ written submissions filed in advance of the hearing. Further, as I have already explained, John’s failure in his affidavit evidence to say anything as to whether consideration was in fact paid could properly be taken into account by her Honour when weighing the evidence.

32. [98]

    Ground 4 should be rejected.

Conclusion

1. [99]

   It follows that the appeal should be dismissed.

2. [100]

   As to costs, John contended that his costs should be paid out of the estate but advanced no submissions as to why costs would not follow the event if his appeal was dismissed. The respondents sought an order that their costs be paid by John. Given the comprehensive rejection of John’s grounds of appeal, the appropriate order is that John should pay the respondents’ costs of the appeal.

3. [101]

   The orders I propose are:

   1. (1)

      Appeal dismissed.

   2. (2)

      The appellant is to pay the respondents’ costs of the appeal.

4. [102]

   McHUGH JA: I agree with Stern JA.