Rule 11.4 link to copy of Code of Conduct on MARA website – https://www.mara.gov.au/Code-of-Conduct/Code-of-Conduct/default.aspx

Complaints that any registered migration agent has acted in breach of their Code of Conduct can be made in writing to: Migration Agents Registration Authority Po Box Q1551 QVB  NSW  1230

The appellants, two people who arrived in Australia irregularly by boat seeking refugee protection, persuaded the High Court to restrain the Minister for Immigration from deporting them to Malaysia.

The background was a political campaign in opposition to the ‘Pacific Solution’ of the previous conservative government. Kevin Rudd, elected as Labor Prime Minister in 2007, vowed to end it and did. Since being elected, the Australian Labor Government has scrambled for a solution that did not involve the ‘Pacific’ locations of Nauru or Papua New Guinea used by the previous government. It announced its own ‘Malaysia Solution’ on 25 July 2011. By political decree, the next 800 boat-people (asylum seekers/refugee claimants reaching Australian territory by an unauthorised boat) would be sent to Malaysia and have their rights under the 1967 Refugee Convention assessed there.

The political arrangement proceeded despite Malaysia not recognising the status of refugees in its domestic law. The bargain was that 4,000 persons assessed as genuine refugees in Malaysia would be resettled in Australia. It was an arrangement not legally binding on Australia or Malaysia.

The legal machinery to achieve it pivoted on Section 198A of the Migration Act, enacted by the previous Commonwealth government.

(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3).
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv) meets relevant human rights standards in providing that protection; and
(b) in writing, revoke a declaration made under paragraph (a).

The Immigration Minister made the section 198A declaration in regard to Malaysia, swearing to the High Court that –

“I formed a clear belief from these discussions that the Malaysian government had made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers and had begun the process of improving the protections offered to such persons. It was also clear to me that the Malaysian government was enthusiastic about using the transfer of 800 persons under the proposed arrangement as a kind of ‘pilot’ for their new approach to the treatment of asylum seekers generally.”

The joint judgment (of Justices Gummow, Hayne, Crennan and Bell) considered the wording of section 198A(3)(a) resonant of the Refugee Convention and Protocol, implying not just the obligation not to return an asylum seeker to a persecuting country (so called ‘refoulement’) , but also to -

* apply the provisions of the Convention to refugees without discrimination as to race, religion or country of origin;
* accord to refugees within a signatory’s territory treatment at least as favourable as that accorded to its nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children
* accord to a refugee free access to the courts of law
* accord to refugees lawfully staying in its territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances as regards the right to engage in wage-earning employment
* accord to refugees the same treatment as is accorded to nationals with respect to elementary education; and
* accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

The Justices noted the Government of Malaysia was not bound to and does not itself recognise the status of refugee in its domestic law and does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees; but generally permits UNHCR to undertake those tasks within its territory.

They concluded that none of the first three criteria stated in s 198A(3)(a), which are basically access to due process and treaty-like protections, was or could be met in the circumstances.

In his separate judgment, Chief Justice French concluded the Minister’s declaration that Malaysia was a safe place to send asylum seekers was unauthorised and affected jurisdictional error. That is, the Minister had misconstrued the relevant criteria and by doing so exceeded his authority to make the declaration.

“The declaration must be a declaration about continuing circumstances in the specified country. It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is “keen to improve its treatment of refugees and asylum seekers”. Nor could a declaration rest upon a belief that the government of the specified country has “made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers” or that it had “begun the process of improving the protection offered to such persons”. Yet the Minister’s affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.”

Likewise Justice Keifel separately wrote -

“Neither the bona fides of the parties to the Arrangement nor the commitment of them to the matters contained in it is in question in these proceedings. It remains the case that Malaysia does not have laws which recognise and protect refugees from refoulement and persecution. Although the Arrangement attempted to address some of the problems which face asylum-seekers in that country, it could not alter that state of affairs.”

Justice Keifel concluded the Minister misunderstood what was required of him when making the declaration, for example, by directing himself to assurances by Malaysia to its future refugee practices.

The dissenter, Justice Heydon, considered the Ministerial declaration made related to Australia’s external affairs, being a decision by a government accountable to Parliament and the political cycle, where it was appropriate for there to be minimal scope for judicial review, noting the danger in Australian courts making pronouncements on other countries’ human rights.

Heydon called the correct test to apply as one of “practical reality and fact” citing the Chief Justice in his 2000 decision for the Federal Court in PETROS ESHO PATTO v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 1554 where French did not think being party to the Convention was necessary for a country to be able to afford protection as a ‘safe’ country.

Heydon also cited Al-Zafiry v Minister for Immigration and Multicultural Affairs [1999] FCA 443 for the proposition that “effective protection” did not require that there be any “legally enforceable right” and generally lauded the Federal Court for its interpretation of migration law. He did not smell much if any of the Refugee Convention in the word “protection” as used in section 198A(3)(a)(i)-(iv), emphasising refugee claimants may not be genuine refugees, and to ignore that distinction and import all the Convention protections would create difficulties, such as funding the same social security entitlements for refugee claimants as given to citizens required by article 24 of the Refugee Convention.

As for the Minister misunderstanding the question, Heydon wrote:

“The plaintiffs also said that the Minister asked the wrong question in failing to consider what the existing position in Malaysia was, as distinct from some possible turn away from that position in the future. This criticism is misplaced. The time of the relevant state of affairs is the time the transferees arrive in the declared country. No earlier time has any significance. So far as the Minister spoke of shifts in the thinking of the Malaysian Government, for example, which might lead to changes in future, he was directing himself to that time.”

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011)

Robert J Garvey SOLICITOR is a Queensland commercial and private client legal practice and migration agency (1172692).

rob@garvey.biz | Tel +61 7 34252299 | Fax +61 7 34252288 |PO Box 177 Dayboro Qld 4521 Australia | Skype: robertgarvey

The decision is significant because the wording in the will, or similar wording, is commonly used in Queensland.

“(c)  to stand possessed of the rest and residue of my estate UPON TRUST to divide the same equally between such of my children as shall survive me and attain the age of eighteen years PROVIDED ALWAYS that if any such child should die without having attained a vested interest hereunder leaving issue who shall survive to attain the age of eighteen (18) years such issue shall take and if more than one equally between them the share in my estate which his her or their parent would have taken had such parent survived to attain a vested interest hereunder.”

The executor’s position was that the deceased child’s share should revert to his surviving siblings, not to the great-grandchild, because, firstly, a proper reading of the above clause meant the gift over was limited to grandchildren, and secondly, the substitution gift was limited to death and not applicable to a disqualification for reason of criminal homicide. The executor succeeded on their first argument, leaving the second one moot.

In support of the broader, lineal descendant, meaning of the term “issue”, which is often used in Wills, the great-grandchild’s submissions referred to other decisions, the plain dictionary meaning, the meaning of the term as used in the Queensland Succession Act 1981, and that, in the context of the clause in the deceased’s will, the narrower interpretation could have been achieved by reusing the terms “child” and “children” and therefore the introduction of the term “issue” indicated a broader meaning.

Justice Peter Lyons took the approach that the determination must be based on the will-maker’s intention from the language of the will as a whole, rather than a rule of construction, noting the High Court in Matthews v Williams (1941) 65 CLR 639 at 650-651 had earlier accepted the prima facie legal meaning of “issue” is descendants or progeny, and not limited to children. He then analysed the words of the clause.

“The only people for whom provision is made for the attaining of a vested interest under the will, conditional on their survival, other than the issue to take in substitution, are the children of the testatrix; and these are referred to as the “parent” of issue who might take in those circumstances.  It is therefore clear that the language of the proviso contains a disposition only to issue of children of the deceased, who are themselves children of the deceased’s children, and accordingly, grandchildren of the testatrix. There is no other language in the will to lead to a different conclusion.”

On the other hand, the clause might be construed such that the gift to a child (or if predeceased, their children) passes wholly intact so that on the deaths of both child and grandchildren, the gift to the grandchild passes to their child, taking the share their parent, the grandchild, might have taken. If the decision is not surprising, it certainly is another reason to avoid legal forms and jargon and insist that all terminology and expressions used in a will are plain and ordinary. In hindsight, the lawyer for the will-maker might have drafted the gift-over proviso by continuing to use the terms “child” and “children” (rather than “issue”) but with offering the following endings to the proviso as alternatives: “and so on for remoter lineal descendants” or “but without substitution for any remoter lineal descendants”.

Justice Strickland has excluded from the divisible pool of assets the matrimonial home which was owned by a discretionary family trust established and controlled by the father of a 42 year old man in a contest with his 33 year old wife. The wife alleged the trust was a ‘piece of machinery’ designed to keep the property ‘from the reach of the Family Court’ and the fact that her husband’s siblings were secondary beneficiaries of the trust was ‘camouflage’. In his evidence, the husband’s father admitted that one of his motivating factors in establishing the trust was to keep the property within those trusts as far away from the Family Court as possible. The trust purchased a residential property near the husband’s place of work for $920,000. It was rented out by the trust for nearly 4 years before the husband and wife took up residence there, at a lower rent, and carried out renovations. The husband conducted himself as though he was the owner of their home and the wife harboured that view.

Section 106B(1) of the Family Law Act 1975 provides that:

In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

Strickland J’s judgment peruses various judicial descriptions of a sham, most notably that:

“all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating” Snook v London and West Riding Investments Ltd [1967] All ER 518 Diplock LJ at 528

Strickland J noted that there is some uncertainty about whether a sham required, as an element, the deliberate deception of third parties, such as fraud. His analysis continued on the basis that the particular sham alleged was not as pejorative as fraud, “but still apt to deny the critical step in the appellant’s case”. The test for the Court being to compare the evidence of intention in the document against evidence of real intention. For this, Strickland cited Justice Kirby in Raftland Pty Ltd as Trustee of the Raftland Trust v Commissioner of Taxation [2008] HCA 21; (2008) 246 ALR 406

and

“Neither the complexity nor the artificiality of a transaction, nor any circularity evident in it, nor the apparent lack of commercial or economic sense will of themselves, alone or in combination, necessarily warrant a conclusion that a transaction constitutes a sham.”

Strickland J observed that:

“Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it.”

If a requirement for a sham was to find a ‘common intention’ of the parties to the transaction to mislead others, such an finding would be practically ruled out in the typical situation of a family trust because the essential parties are a settlor (often accountant, or a solicitor as in the present case) and the trustee. Strickland J reviewed authorities finding it was possible for a unilateral sham to emerge over time by the transaction masking a departure from the original intent and without involving any party to the marriage. He also noted the narrow operation of the doctrine in New Zealand where the NZ Court of Appeal in Official Assignee in Bankruptcy in the Property of Reynolds v Wilson and Harvey and Anor[2008] NZCA 122 gave safe harbour from sham for any trust valid at its inception, except, possibly, only in relation to a portion of property subsequently transferred into the trust.

From this Strickland J deduced that regardless of the husband’s conduct, for there to be a sham, there must be ‘evidence of an intention on the part of the husband’s father’ to confuse the legal terms of the trust with the ‘actual entitlements of the husband’. Essentially, Strickland found that the wife did not have enough evidence to establish an intention on the part of the husband’s father that would amount to a sham.

This case highlights the enduring strength of family trusts in estate planning to achieve asset protection for a client’s bloodline. The message for family lawyers is that to set aside a properly established and administered family trust, which is not legally controlled by a party to the dispute, requires evidence close to fraud. Just how close, Strickland J did not say.

The retirement unit operator paid an exit fee of $274,840 to the estate. The executors asked for advice from the Queensland Supreme Court as to whether that money was, on a proper reading of the will, for the grandchildren or great grandchildren.

On 31 January 2011 Justice Margaret Wilson delivered reasons for her decision that the retirement unit was not substitute house property owned at the date of death. After a concise review of similar decisions where plain meaning is always the starting point, Justice Wilson consulted the Oxford English and Macquarie Dictionaries, concluding her judgment as follows.

“Unlike the testatrix in Re Blake Dec’d, the testatrix in this case made her will when she was still living in her own home. She did not expressly contemplate that by the time she died she might not be living independently. She referred to “any substitute house property” rather than to “any other accommodation facility”. If the testatrix had been living in a home unit or town house bought with the proceeds of sale of 18 Esma Street when she died, then that property would have been within the description of a “substitute house property” owned by her within the meaning of her will. I doubt that the unit in the retirement village is embraced by the words “substitute house property”. But even if it is, it was not a property owned by her when she died.” [Paragraphs 39 to 40]

In essence, the decision turned on a finding that the plain meaning of “own” did not cover 99 year leasehold tenure, despite section 33I of the Succession Act 1981 (Qld) by which, subject to contrary intention in the will, provides a rule of construction that a “general disposition of land, or of land in a particular area, includes leasehold land, whether or not the testator owns freehold land”.

Re Purcell (1991) 103 FLR 271 was authority for a ‘house’ to include a ‘unit’ but –

“The real question is not what was the testatrix trying to achieve but, rather, what did she mean by the words used in her will when it took effect. It is relevant for this purpose to look at what she had intended to refer to by the words she used at the time the will was executed.” Re Purcell Higgins J at 279

Re Willis [1996] 2 Qd R 664 was also cited by the Court.

“The intention of the testatrix must be derived primarily from the words themselves, and an intention cannot be inferred if the words could not reasonably support such a meaning. However, a will should not be construed in a strictly technical or legalistic sense and the construction should be sensitive to the factual context of ordinary life and circumstances. So too if special personal circumstances of a testator have a bearing on the meaning of an expression that he may adopt, they should be accorded proper influence.”

Section 33C of the Succession Act 1981 (Qld) allows admission of evidence of a testator’s intention to interpret a will which is ‘ambiguous in light of surrounding circumstances’ but not to establish circumstances giving rise to the ambiguity.

The distinction drawn by the Court largely changed the previous substantive effect of the will. The difference may have been lost on Mrs. Ashton who paid the price of a home for her retirement unit tenure. Is it nonsense or plain language to consider she owned it?  Under the terms of the lease, it ended 14 days after death triggering the exit payment. The decision favours the utility of precise will drafting to avoid a post-mortem analysis of what the deceased might have wanted. Perhaps too far.

The Trust Company Limited & Anor v Zdilar & Ors [2011] QSC 5

Solicitor General Stephen Gageler SC gave his opinion on 26 August 2010. It is, in summary, that perception of bias or conflict of interest raises no legal barrier for the Governor-General. His reasoning is simple – it is necessary and critically important that the reserve powers can be exercised, especially in a politically charged impasse.

He noted the Queen’s instructions in her current letters patent allows for some of the Governor-General’s functions to be vested temporarily in an administrator and authorises the Governor-General to appoint a deputy. That the Australian constitution specifically allows such deft movements of reserve power had no impact on Mr. Gageler’s view of it.

Mr. Gageler’s opinion is unqualified in that the Governor-General’s connections and relationships cannot exclude or in any way impede their exercise of the functions of office. No mention is made of impairments beyond questionable connections or relationships, such as the precedent set by Dr Peter Hollingworth ceasing to function as Governor General on 15 May 2003 to defend a civil charge of rape.

It is remarkable, but understandable, that the Governor General has legal immunity from allegations of bias or conflict of interest. In the political tumult of the Governor-General making a deliberated decision there should be no legal appeal grounded in bias or conflict of interest, but more politics.

Indeed, the Moreton Bay Regional Council has explained that rates are a “wealth tax”. After pressing the Council rates officer about Council’s role and power to levy rates and drawing their attention to the wording of the regulations that give them a power to differentiate between types of land, not types of owners, the Council’s reply is simply that other Councils are doing it too.

On 2 July 2010 the Court of Appeal of the Supreme Court of Queensland, in Xstrata Coal Qld P/L & Ors v Council of the Shire of Bowen [2010] QCA 170, decided against the Council Shire of Bowen which took into account the capacity of the ratepayer to pay higher rates when deciding its rating categories. That rate payer argued capacity to pay was irrelevant and the Court unanimously agreed.

Appeal Justice Chesterman described it this way –

They argue the Act did not contemplate anything other than some attribute or characteristic of the land which was to be categorised and differentially rated being taken into account when determining the rate. The appellants submit that what might be taken into account were such things as the use to which the land might be put, including its highest and best use, the burden the land or its use may have upon the Council’s budget and, of course, the value of the land including its potential to earn income for the land owner. The appellants submit, emphatically, that the Council was not entitled to take into account any characteristic of the owner of the land, such as wealth, when fixing a differential rate. The submission, must, I think, be accepted …. if a Council is to utilise the statutory powers to set a differential general rate it must divide the land in its area into categories; and the categorisation must occur by reference to identifiable criteria which in some way describe the land.

Appeal Justice Holmes simply wrote -

I agree with Chesterman JA that the learned primary judge erred in concluding that the capacity of a landowner to pay, independent of any quality of the subject land, was a relevant consideration in the decision to set rates.

The Appeal Court quoted approvingly of a New Zealand Court of Appeal decision against the Wellington Shire Council as “entirely apposite”, emphasising rates are levied on properties, not property owners.

“… rates are levied on property, not on ratepayers as such and, materially for present purposes, the criteria specified under s 81 are directed to the characteristics of property rather than of ratepayers.” Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 noted (546)

Appeal Justice Chesterman further refined the issue to this –

“were the differential rates set by reference to the appellant’s personal capacity to pay rates, or by reference to the capacity of the land in the separate categories to produce the capacity to pay?”

The Council rates officer I spoke with justified rates as a wealth tax because it is based on the value of land, and implicitly, as a wealth tax Council should levy higher rates against those able to pay more. The Appeal Court had already dealt with that argument too. Justice Chesterman -

“A ratepayer’s wealth is irrelevant to the process of deciding what rates should be levied on its property. That proposition is undoubted…. The unimproved value of land is an attribute of the land. Such a value of land owned by a ratepayer says nothing about his wealth or capacity to pay rates. That the legislation fixes upon unimproved capital value as the basis for levying rates is a substantial indication that the property owner’s wealth, measured by anything but that value of the land, is not a factor to be considered in the levying of rates.”

I put a simple example forward to Council.  Consider two alike residential houses side by side, one owner occupied, the other in a family trust with the occupier being the sole director and shareholder of a corporate trustee and the main trust beneficiary. Council’s rates officer said although the demands on Council services would be the same, the difference was the second home had a non natural owner and therefore would be charged higher rates.

I elaborated: what if the trust was the necessary result of a death in the family? The Council rates officer said Council would make an exception for some trusts. I asked for the criteria Council uses to charge some non natural owners more and not others. The answer given was that generally Council will apply the higher rating category to a residence owned by a company trustee owner, whereas a trust with an individual as trustee would pay the lower rate. This did not make sense to me, given a testamentary trust arising from death may well have a company trustee, and ‘for profit’ unit trusts often have one or more individuals as trustee.

I asked Council’s rating officer if there were any directions or guidance, whether for rates assessors or rate payers, on how Council exercises its discretion when deeming a rate payer non natural and therefore liable to the higher rate. Unfortunately there is nothing written down about it, at least nothing the public can access. To be cynical, giving trustee ratepayers such certainty would enable them to easily change their trustees to avoid the new impost. I think it fairer and more realistic to say Council simply has not thought it through. The only guidance is the definition of non natural person in Council’s “Rating Category Statement 2010/11” –

“Any reference in this Rating Category Statement to a “non natural person” means a company, trust, government department and any other type of entity deemed by the Council not to be a natural person.”

This definition is circular: a non natural person is any entity the Council deems to be a non natural person. This nonsense harks of another theme touched on by Appeal Justice Chesterman in his judgment.

“A decision to impose a greater proportion of the rates burden on some, but not all, wealthy landowners, where there is no rational basis for distinguishing amongst such owners, may well be arbitrary or capricious, but the applicants did not advance such a case.”

It is settled administrative law that public authorities that retain a discretionary decision-making power over people should develop and publish policies and guidelines to help decision-makers be consistent and give due weight to relevant factors only. While in my opinion Council have no lawful authority to make discretionary decisions about a ratepayer’s ability to pay more rates without reference to the type of land, if it does, to be fair, it should be transparent about it and publish its thinking.

The unanimous decision by the Appeal Court of the Supreme Court of Queensland is emphatic that Council must rate types of land, not types of owners. Before Council will admit to its mistake, its lawyers can be expected to argue that forceful decision was based on the law before the Local Government Act 2009 and the Local Government (Finance, Plans and Reporting) Regulation 2010. Let’s take a look at them.

The enabling section of the Act is straight-forward, allowing rates on all rateable land, including separate or special rates and charges by budget resolution.

“94 Power to levy rates and charges

(1) Each local government—

(a) must levy general rates on all rateable land within the local government area; .. “

The 2010 Regulations give specific guidance about the types of differential rating categories.

“15 Categorisation of land for differential general rates

(1) Before a local government levies differential general rates, it must decide the different categories (each a rating category) of rateable land in the local government area.

(2) The local government must, by resolution, make the decision at the local government’s budget meeting.

(3) The resolution must state—

(a) the rating categories of rateable land in the local government area; and

(b) a description of each of the rating categories.

Example—

A resolution may state that the rating categories, and a description of each of the rating categories, are as follows—

(a) residential land—land that is used for residential purposes in particular urban centres, rural localities, park residential estates and coastal villages;

(b) commercial and industrial land—land that is used solely for commerce or industry in particular urban centres and rural localities, other than land used for manufacturing sugar or another rural production industry;

(c) grazing and livestock land—land that is used, for commercial purposes, for grazing and livestock;

(d) sugar cane land—land that is used for producing sugar cane;

(e) sugar milling land—land that is used for manufacturing sugar;

(f) rural land—

(i) land that is not in an urban centre or locality; or

(ii) land that is not used for grazing and livestock; or

(iii) land that is not sugar cane land or sugar milling land;

(g) other land—any other type of land.”

As you would expect, the regulations give Council a discretion to categorise different types of rateable land in its budget resolution. But despite the recent Supreme Court decision right on point, Council have interpreted Regulation 15 to allow it to assess the land owner’s capacity to pay.

In so doing, Council has created the new R2 category for rental properties or owner occupied properties where the owner is deemed to be a non natural person. Council gamely admits that the different categories apply to land that is otherwise indistinguishable, except for Council’s view of the ownership structure. Council plainly did not read that part of the Court of Appeal’s decision relating to “arbitrary or capricious” rating assessments either.

I drew Council’s attention to the eight examples given in the Regulations of acceptable categories of land that may be rated differently. Every one of the eight examples relates to the quality, use or character of the land. There is no example given of a rating category with reference to the type of ratepayer or their capacity to pay. The “catch-all” for new categories which the Council might establish in its undoubted discretion, not covered by the examples, is “any other type of land”.

Council’s response is that examples are just examples and do not limit its discretion to decide categories in any way it considers appropriate. Council did agree that imposing a higher rating on rate payers with red hair would not work, but I expect for reasons of politics, not law.  Council have indicated they will defend their budgetary resolution, presumably to the Appeal Court of the Supreme Court of Queensland, and beyond, at ratepayers expense.

HANDLEY AJA
31 Although a will is revocable until death or loss of testamentary capacity, equity enforces a contract not to revoke a will, or to leave property by will, not by restraining or nullifying an inconsistent will, but by fastening a trust on the estate to give effect to the contract: Birmingham v Renfrew [1937] HCA 52, 57 CLR 661, 683. A contract to leave an identified property by will is specifically enforceable against volunteers who claim under a disposition by the promisor in his lifetime: Synge v Synge [1894] 1 QB 466 CA, 470-1, but is subject to the claims of creditors if the estate is insolvent: Schaefer v Schuhmann [1972] AC 572, 586, but compare (1972) 88 LQR at 321-2.

32 A contract not to revoke a will is subject to contingencies. Revocation by operation of law on remarriage is not a breach: Re Marsland [1939] Ch 820 CA. The promisee must survive the promisor to avoid lapse: Re Brookman’s Trust (1869) LR 5 Ch Ap 182; and a contract for a share of residue is subject to the claims of creditors: Jervis v Wolferstan (1874) LR 18 Eq 18, 24; Schaefer v Schuhmann (above) at 586, but compare (1972) 88 LQR AT 321-2.

33 A contract to leave property by will is subject to lapse if the promisee pre-deceases the promisor, but will not be affected by his marriage. The contract will be defeated by a disposition in the promisor’s lifetime to a purchaser for value without notice: Schaefer v Schuhmann (above) at 586.

34 A contract not to revoke a will, or to leave specific property by will could be defeated, if there were eligible dependants, by an order for provision under the Family Provision Act 1982: Barns v Barns [2003] HCA 9, 214 CLR 169, or the designation of the property as notional estate under ss 22(4)(f) and 23(b)(iii) of that Act (since 2008 under corresponding provisions in the Succession Act 2006). If the promisor marries, and his marriage ends in divorce, the Family Court could order a transfer of the subject property to the wife and defeat any contract by the husband to leave it to someone else in his will.