DISTRICT COURT OF QUEENSLAND

CITATION:	Frey v Frey & Ors [2015] QDC 184	
PARTIES:	Richard Henry FREY
(Applicant)

v
				
Leila FREY and Lyndon Cecil Edward FREY (as executors of the will of Henry Edward FREY deceased)
(Respondents)
	
FILE NO:	2193/15	
DIVISION:	Civil	
PROCEEDING:	Originating Application	
ORIGINATING COURT:	District Court of Queensland	
DELIVERED ON:	29 July 2015	
DELIVERED AT:	Brisbane	
HEARING DATE:	24 July 2015	
JUDGE:	Kingham DCJ	
ORDER:	1.	It is declared that, on the proper construction of clause 15 of the Will of Henry Edward Frey deceased dated 8 October 2002 (as varied by order of the Supreme Court of Queensland made by the Hon. Justice Ann Lyons on 20 March 2009) (‘the Will’), the following items are ‘farming machinery’ within the meaning of that expression used in that clause: 
a)	Those items marked with the numbers “1”, “2” or “3” in the list that is exhibit “WEJ-5’ to the affidavit of William Edwin Johnson filed in this proceeding, but excluding: 
(i)	the item “chemicals on hand (Velpar)” and 
(ii)	the item “bales of wool and hay on hand”; 
(b)	the item “aluminium boat with electric and petrol motors and oars”; and 
(c)	the item “Electric Lightburn cement mixer”. 
2.	The Respondents shall take all reasonable steps to cause each item that is, pursuant to paragraph 1 above, declared to be ‘farming machinery’ to be transferred, within 14 days, into the names of or under the control of the Applicant and Lyndon Cecil Edward Frey, jointly. 
3.	The Respondents shall take all reasonable steps to cause the irrigation plant that is referred to in clauses 7(a) and 20 of the Will to be transferred, within 14 days, to the Applicant. 
4.	The parties’ costs of and incidental to the application, assessed on the standard basis, are to be paid out of the estate of Henry Edward Frey deceased. 
	
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – where testator made gifts to the Applicant of a rural property, the irrigation plant and certain stock – where irrigation plant located on that property when the testator died – where found the irrigation plant fell within the gift to the applicant.
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – where testator made gift of farming machinery to the applicant and Lyndon Frey – where dispute about what items fall within the meaning of the term farming machinery – where declaration made as to what items fall within that gift.
Succession Act 1981 s 52, s 33E
Public Trustee v Smith [2009] 1 Qd R 26
Yeatman v Yeatman (1877) 7 Ch D 210
	
COUNSEL:	R.D. Williams for the Applicant
	
SOLICITORS:	John Davies & Co. for the Applicant
Lilley Spanner & Stacey for the Respondents	

[1]	Henry Frey died on 5 February 2004. Finalisation of his estate has been delayed by a history of applications about the terms of the will and its administration. Some nine years later, the only matters in dispute relate to gifts of chattels in favour of his son Richard Frey, either solely or jointly with his brother Lyndon Frey, also one of the executors of the estate.
[2]	In short, the disputes relate to irrigation plant on a property devised to Richard, since removed by the executors, and items of agricultural equipment. 
[3]	There is no dispute about the legal principles that apply. I must discover the testator’s intention by examining the words used in the will. Recourse to extrinsic evidence is not open, unless the ordinary meaning of the words in dispute, viewed in the context of the will as a whole, is not sufficient to resolve the construction issue. In this case, I have not been asked to have recourse to extrinsic evidence about the meaning of the relevant words and I see no basis for doing so. 
The irrigation plant
[4]	The operative clause (7(a)), as amended by previous court orders, relevantly provides:
I GIVE DEVISE AND BEQUEATH my property known as “Woodlands”…and all Road Licences, the irrigation plant and the brand 7NF…to my son, RICHARD HENRY FREY, for his sole use and benefit absolutely.
[5]	Unless a contrary intention appears, the will must be construed, with reference to the property comprised in it, as if it had been executed immediately before the death of the testator.
[6]	If that approach is adopted, the irrigation plant located on the property when Henry Frey died is included in the gift.
[7]	Certain items of irrigation plant were located on the property Woodlands when Henry Frey died. Later, the executors removed the following items and put them to use on other properties:
(a)	25 lengths of aluminium pipe (each 6” diameter x 30’ long)
(b)	25 lengths of aluminium pipe (each 5” diameter x 30’ long)
(c)	1 x 2300 litre mobile fuel tank.
[8]	The executors have not identified any basis for construing a contrary indication that would displace the usual approach to construction of such a gift. That is not surprising given the specific direction about irrigation plant located on Woodlands that appears in clause 20:
I DIRECT that the irrigation plant and machinery on my property known as “Woodlands” shall not be removed therefrom.
[9]	It is irrelevant that the irrigation equipment had been used on more than one property when Henry Frey was alive. It is also irrelevant that the effect of the gift could hamper Mrs Frey’s use of a property left to her by her husband. I must give effect to the intention of the testator and that is clear in its terms.
[10]	The irrigation plant removed by the respondents falls within the gift made by clause 7(a).
The farming machinery
[11]	The gift of farming machinery is to Richard Frey and his brother Lyndon Frey as joint tenants. 
[12]	The operative clause (15), as amended by previous court orders, provides:
I GIVE all my farming machinery to my sons, RICHARD HENRY FREY and LYNDON CECIL EDWARD FREY, for their use and benefit as joint tenants absolutely.
[13]	The dispute about this clause is long standing. In August 2011 the executors consented to an order that they provide a schedule of all farm machinery owned by the deceased or acquired by the estate. A schedule was provided, but the parties corresponded about its accuracy for some 18 months. Richard Frey produced a list of 93 items in March 2013 and the application proceeded on the basis of that list. The executors concede 14 items fall within the gift but dispute the remaining items.
[14]	Richard Frey relies on an assessment by William Johnson, a registered urban and rural valuer with more than 40 years’ experience. He has considered Richard Frey’s schedule and categorised the items as follows:
(a)	1 – exclusively farming machinery;
(b)	2 – predominantly farming machinery;
(c)	3 – could be used for farming machinery;
(d)	4 – is not farming machinery.
[15]	Richard Frey seeks a declaration to the effect that the items in categories 1, 2 & 3 fall within the gift.
[16]	The executors accept Mr Johnson’s expertise as a valuer, but dispute this qualifies him to identify what items fall within the term farming machinery. Richard Frey accepts that is a matter for the court to determine but asserts Mr Johnson’s opinion can be accepted as an expert opinion about what items might be used for farming. Mr Johnson was not required for cross-examination. I accept he is suitably qualified to express an opinion about what items might be used for farming. 
[17]	The schedule of equipment prepared by Richard Frey, and provided to Mr Johnson for his opinion, referenced a definition of farm which included both growing crops and raising animals. That appears to be the basis upon which Mr Johnson categorised the equipment.
[18]	The position taken by the executors is that the word farming should be read so as to draw a distinction between the farming of land to raise and sell livestock and the farming of land to grow grain and other produce. Their argument is that the gift is only for machinery used for farming of land to grow grain and other produce.
[19]	That submission calls for reading down the ordinary meaning of the word farming, which encompasses both agricultural pursuits.
[20]	The following definitions from the Macquarie Dictionary illustrate the inclusive meaning which ordinarily arises:
Farming 1. the business of operating a farm.
Farm 1. A tract of land devoted to agriculture.
Agriculture 1. the cultivation of land, including crop-raising, forestry, stock-raising, etc.
[21]	In their affidavit, the executors depose to the activities undertaken by Henry Frey on the properties. They described the business as predominantly that of raising and selling livestock such as sheep and cattle and shearing of sheep. They say that in the conduct of that business, Henry used certain areas of his land for growing fodder for livestock – either for grazing purposes or for hay production for use in times of drought.
[22]	The executors have not based their argument on the words of the clause or its meaning in the context of the will as a whole. Although Henry Frey drew a distinction between the properties, which were devised to different beneficiaries, I am unable to discern any indication in his will that he intended to draw a distinction between the activities undertaken on those properties. 
[23]	Mr Johnson’s categorisation of the items has been made on the ordinary meaning of the term farming. The executors have not raised any other basis for rejecting his opinion and there is no other evidence to persuade me his categorisation might be faulty. In those circumstances, it is appropriate to make orders about the transfer of the items in terms that reflect the opinion expressed by Mr Johnson in his opinion and affidavit.
Costs
[24]	Richard Frey seeks an order for costs in his favour, the executors to meet that order personally, without indemnity from the estate. This differs from the usual position that the executor’s costs are normally be paid out of the estate. However, that is not a fixed rule and the Court’s discretion to award costs is not so restrained, but must be exercised judicially, with reference to relevant factors about the conduct of the litigation.
[25]	The applicant has succeeded in his application. There was little merit in the executors’ position on either point in issue. That said, more could have be done by both parties to reach an amicable settlement of minor issues which delayed final administration of substantial estate. The application is not the only litigation between these parties in relation to the estate. Overall, the administration has been highly contested and relations between the parties appear to have broken down, perhaps irrevocably. 
[26]	I do not consider the stance taken by the executors was so unreasonable that they should bear the costs of the application personally. In the circumstances, I consider it appropriate to order that the parties’ costs of the application, assessed on the standard basis, are paid out of the estate.

Orders
[27]	I make the following orders:

1.	It is declared that, on the proper construction of clause 15 of the Will of Henry Edward Frey deceased dated 8 October 2002 (as varied by order of the Supreme Court of Queensland made by the Hon. Justice Ann Lyons on 20 March 2009) (‘the Will’), the following items are ‘farming machinery’ within the meaning of that expression used in that clause: 
b)	Those items marked with the numbers “1”, “2” or “3” in the list that is exhibit “WEJ-5’ to the affidavit of William Edwin Johnson filed in this proceeding, but excluding: 
(iii)	the item “chemicals on hand (Velpar)” and 
(iv)	the item “bales of wool and hay on hand”; 
(d)	the item “aluminium boat with electric and petrol motors and oars”; and 
(e)	the item “Electric Lightburn cement mixer”. 
2.	The Respondents shall take all reasonable steps to cause each item that is, pursuant to paragraph 1 above, declared to be ‘farming machinery’ to be transferred, within 14 days, into the names of or under the control of the Applicant and Lyndon Cecil Edward Frey, jointly. 
3.	The Respondents shall take all reasonable steps to cause the irrigation plant that is referred to in clauses 7(a) and 20 of the Will to be transferred, within 14 days, to the Applicant. 
4.	The parties’ costs of and incidental to the application, assessed on the standard basis, are to be paid out of the estate of Henry Edward Frey deceased.