Harmony – The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276

Supreme Court New South Wales

Medium Neutral Citation: Harmony – The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276 Hearing dates: 11 September 2020 Decision date: 18 September 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. The Court declares that the plaintiff holds its property subject to a valid charitable trust within the meaning of section 3 of the Charitable Trusts Act 1993 (NSW) for the purposes set out in clause 2 of its Constitution which is Annexure A to these orders. 2. The Court declares that in the circumstances the original purposes of the charitable trust have, since they were laid down, ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust, within the meaning of section 9 of the Charitable Trusts Act 1993 (NSW). 3. The trust property be applied cy-près and that a scheme be established whereby the trust property be applied for the purposes set out in clause 5 of the proposed Constitution which is Annexure B to these orders. 4. The plaintiff do all such things as are necessary to adopt the proposed Constitution. 5. The costs of the plaintiff are to be paid out of the assets of the trust on the indemnity basis and that the defendant is to bear his own costs. The Court notes that: Any amendments to the Constitution as may be made by the members of the plaintiff in the future will not have effect to alter the trust purposes pursuant to the cy-près scheme in order 3. Should any further alteration of the trust purposes in the future be desired, this can only be effected through a further cy-près scheme. Catchwords: CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — Cy-près scheme — Charitable purpose — Original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust Legislation Cited: Charitable Trusts Act 1993 (NSW), ss 3, 6(1)(a), 9 Charitable Uses Act of 1601 (43 Eliz I, c. 4) Cases Cited: Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; [2010] HCA 42 Attorney General for New South Wales v Fulham [2002] NSWSC 629 Attorney General for the State of Queensland (Ex rel Nye) v Cathedral Church of Brisbane (1977) 136 CLR 353; [1977] HCA 15 Auckland Medical Aid Trust v Commissioner of Inland Revenue [1979] 1 NZLR 382 Australian Executor Trustees Ltd v Attorney-General (SA) [2010] SASC 348 Barby v Perpetual Trustee Co (Ltd) (1937) 58 CLR 316; [1937] HCA 64 Commissioners for Special Purposes of the Income Tax v Pemsel [1891] AC 531 Downing V Commissioner of Taxation (Commonwealth) (1971) 125 CLR 185; [1971] HCA 38 Estate of Flannah Raw Ward [1957] SASR 125 Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204; [2008] HCA 55 Flynn v Mamarika (1996) 130 FLR 218 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Dobrijevic (2017) 94 NSWLR 340; [2017] NSWCA 28 Grain Growers Ltd v Chief Commissioner of State Revenue [2015] NSWSC 925 Hunter Region SLSA Helicopter Rescue Service Ltd v Attorney General for New South Wales [2000] NSWSC 456 In re Pleasants; Pleasants v Attorney-General (1923) 39 TLR 675 Inland Revenue Commissioners v McMullen [1981] AC 1 Inland Revenue Commissioners v Yorkshire Agricultural Society [1928] 1 KB 611 Perpetual Trustee Co Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456 Perpetual Trustee Co Ltd v Commissioner of Stamp Duties (NSW) [1976] 1 NSWLR 127 Phillips v Roberts [1975] 2 NSWLR 207 Re Centrepoint Community Growth Trust [2000] 2 NZLR 325 Re Cohen (deceased) [1973] 1 All ER 889 Re Coulson [2014] VSC 353 Re Hood [1931] 1 Ch 240 Re Price; Midland Bank Executor & Trustee Company Ltd v Harwood [1943] Ch 422; 2 All ER 505 Re Vernon's Will Trusts [1972] Ch 300 Russell v Attorney Genera! of New South Wales [2019] NSWSC 98 Scottish Burial Reform & Cremation Society v Glasgow Corporation [1968] AC 138 Sir Moses Montefiore Homes v Howell & Co (No 7) [1984] 2 NSWLR 406 Sydney Homoeopathic Hospital v Turner (1959) 102 CLR 188; [1959] HCA 19 Tantau v MacFarlane [2010] NSWSC 224 Tasmanian Electronic Commerce Centre Pty Ltd v Commissioner of Taxation (2005) 142 FCR 371; [2005] FCA 439 Taylor v Taylor 10 CLR 218; [1910] HCA 4 Ubiparipovic v Vucicevic [2018] NSWSC 1583 University of New South Wales International House Ltd v University of New South Wales [2016] NSWSC 1709 Versani v Jesani [1999] Ch 219 Category: Principal judgment Parties: Harmony – The Dombroski Foundation Limited (Plaintiff) Attorney General in and for the State of New South Wales (Defendant) Representation: Counsel: H El-Hage (Plaintiff) A Hochroth (Defendant)