Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Wednesday, 25 July 1906


Senator BEST (Victoria) .- I admit freely that Senator Keating is quite right in saying that these provisions are well founded. They are founded on English legislation, to some extent re-enacted in our own law, but it is just as well that the Committee should understand the full extent of their operation. Personally, I think that thev go too far. Under this clause, for instance, this might happen : A.B. might be a life tenant of a most valuable property in Collins-street, CD. the reversionary owner, subject to the life tenancy of A.B., may be living in a remote part of Australia or abroad. It would be quite possible, under this clause, for the Commonwealth Government to resume the property by arrangement or otherwise. It will toe observed that the estate of the life tenant would be practically only a small portion carved out of the estate in question. The Bill would enable the life tenant to deal with that valuable property just as though he were the owner of the fee-simple, and the Government could go so far as to say that he was entitled to receive the whole of the purchase money. The real owner of the reversion, who, as I have said, might be resident abroad, might never hear anything about the transaction. Hitherto the life tenant has not been able to deal with any interest in an estate, saving his own life tenancy, but, under this clause, when once he received the purchase money, he would put it into his pocket, and the owner of the reversion would be absolutely and completely robbed of his interest in the estate. That is what this Parliament is asked to enact. According to my view that has always seemed to be a harsh law. I think that the proper -way in which to deal with such matters is that, where various interests exist in an estate, such, for instance, as the interest of a remainder man, the owner of the reversion, it should be necessary that the transaction should be submitted to a Judge of the Supreme Court, or, ai least, to m..orncer of that Court, whose duty it should be to assess the value of the several interests in the estate, and to pay om! to the life tenant, for example, his interest, whilst the Government should deposit in the Treasury, or in the Savings Bank, or with the Court, as might be thought advisable, the balance of the money, to be lifted whenever the remainder man came to be entitled to it. I have given a most simple illustration, because I desire to impress upon honorable senators the seriousness of the principle. I wish' them to understand that they are here being asked to re-enact what, in my view, is an alarming principle, and I have suggested what I think should be the course adopted.


Senator Pearce - The objection seems to lie only to paragraph i of clause 8.


Senator BEST - No; ihe objection lies to paragraph b, " Tenant in tail or for life."


Senator Pearce - To paragraphs b and i; the other cases appear to be fairly safeguarded.


Senator BEST - In the case of other trustees referred to, it is probable thai' the hardship would not be so serious. For instance, a guardian is constituted by a testator, or by the Court, to control the property, and there would be no hardship in that case. There would be no hardship in the case of a " committee of a lunatic or idiot" who would be appointed by the Court' for the purpose of looking after the affairs of the lunatic or idiot. There would, possibly, be no hardship in the case of a "trustee or feoffee'' in trust appointed by the persons directly interested, or by the Court, for the purpose of managing the trust estate, nor in the case of an executor or administrator appointed either by a testator, or by the Court. I think that the objection I have raised would lie to paragraph h -

Person for the time being entitled to the receipt of the rents and profits of any land in possession or subject to any estate in dower.

In respect to paragraphs b, A, and the serious objection I have raised will hold good. I . submit to the Minister that the terms of the Bill are that', in the case of these persons, they are to be entitled to give the estate in fee simple to the Government. There might be no objection to that, but when we come to look at clause 11, we find that it is provided that -

Any such purchase money or compensation when paid - to such persons, is to be applied in certain ways provided for in the clause. When the money is paid over to the life tenant to whom I have referred, clause 11 goes on to provide how the purchase money shall be applied by that person. It will then be quite competent for any person interested to apply to the High Court, or the Supreme Court of a State, for a direction as to the way in which the purchase money shall be applied. That is all right.


Senator Turley - Is it not dealt with in clause 10?


Senator BEST - The point is that the money has already been paid over.


Senator Turley - .Clause 10 indicates to whom it may be paid.


Senator BEST - The money has already been paid over to the tenant for life, and he has put it in his pocket. C. D., the person I have referred to, has never heard anything about the matter, and without his will, he has been robbed of his estate. 'It has been converted into cash and the money has been paid to a person who was only a tenant for life.


Senator Pearce - Which is authorized by this Bill.


Senator BEST - Yes; a life tenant is authorized to convey the whole estate away from C, D., who is abroad. I submit that if it were necessary to hunt all over the country for the cestui que trusts - that is the persons beneficial lv interested - the matter would be hung up indefinitely. Where trusts are disclosed, the obligation should be thrown upon the Government to pay the money into Court, in order that an assessment of the various interests might be made, and. the money paid out. Although these principles have been re-enacted time after time, I would call the attention of the Government to the desirability of reconsidering them.







Suggest corrections