Case: Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Outcome: referred to
The Social Security Act does not define "beneficial interests". The expression "beneficial interest" has no precise received meaning: compare RP Meagher, JD Heydon, and MJ Leeming, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (Butterworths, LexisNexis, 4th ed, 2002) at [4-040] and R Speed, "Beneficial Ownership" (1997) 26 ATR Rev 34 at 50. Indeed, the word "interest" is itself "capable of a very wide and general meaning": see Gartside at 617 per Lord Wilberforce; Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 (" Livingston ") at 22 per Viscount Radcliffe; and CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53 ; (2005) 224 CLR 98 at 114 per Gleeson CJ, McHugh, Gummow, Callinan and Heydon JJ. The expression "beneficial interests" therefore falls to be interpreted principally by reference to the statutory context in which it is used, and any guidance that the general law can provide. The Court may also have regard to extrinsic materials such as the second reading speech or the explanatory memorandum accompanying the Bill to confirm that the ordinary meaning of the expression is applicable or to assist in resolving any ambiguity: see Acts Interpretation Act 1901 (Cth), s 15AB. 39 Under clause 5(b) of the will, each of the Elliotts and their daughter has a right to be considered by the trustees as a possible recipient of a payment out of the income and capital of the trust in accordance with the terms of the trust. They also have a right to have the trustees consider whether they should be permitted to reside rent free in any property forming part of the estate. Each of them has a right to have the trust administered duly and properly: compare Gartside at 617-8 per Lord Wilberforce. They also had a right to receive information about the management of the trust fund and to see trust documents: see [44] below. Furthermore, the discretionary beneficiaries have a right to trace and follow the trust assets if they are misappropriated: Livingston 23-24; also Hardingham IJ and Baxt R, Discretionary Trusts (Butterworths, 2 nd ed, 1984) at [517]. It is by no means self-evident, however, that, because of these rights, any of them has "beneficial interests in the corpus or income of the trust" within the meaning of par 1207V(2)(d) of the Social Security Act . 46 Furthermore, Gartside , Anchorage , Carey and Livingston (see Weinberg J's discussion in Geeves at 143) make it plain that, although the object of a discretionary trust holds a bundle of rights, these rights do not necessarily amount to what can be termed an "interest" or "beneficial interest", when considered from the perspective of a particular statute: compare M Stone and V Lesnie, "Some Thoughts on Beneficial Interests and Beneficial Ownership in Revenue Law" (1996) 19(1) UNSW Law Journal 181 at 183 and David Hayton, Paul Matthews &amp; Charles Mitchell, Underhill and Hayton Law Relating to Trusts and Trustees (LexisNexis Butterworths, 17 th ed, 2006) at [1.1]. Of course, this is not to say that, in a particular statute, such rights might not be so regarded and described. The question, then, is whether or not the rights of the discretionary beneficiaries in this case amount to "beneficial interests in the corpus or income" such that they might be "aggregated" within the meaning of par 1207V(2)(d).