Johnson v Johnson [2022] NSWSC 44

Supreme Court New South Wales

Medium Neutral Citation: Johnson v Johnson [2022] NSWSC 44 Hearing dates: 1 December 2021 Decision date: 31 January 2022 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Declare that the gift of the late Kathleen Mary Johnson of her entire residuary estate by a testamentary perpetual trust as set out in clause 2 of her Will dated 4 June 2000 (the Will) is void. 2. Declare that clause 7 of the Will does not operate to create a charitable trust. 3. Declare that, by reason of the failure of the testamentary perpetual trust, there is a partial intestacy under the Will. 4. For the purposes of giving judicial advice to the executors pursuant to s 63 of the Trustee Act, advise that the executors of the estate would be justified in taking the steps identified in paragraphs 19 and 20 of the Amended Statement of Facts which forms part of Exhibit E on the present application. 5. Liberty to apply for further directions from the Court in relation to any issues arising out of the administration of the above or implementation of the above. 6. Order that the plaintiffs' costs of the summons be paid out of the estate of the deceased on an indemnity basis. Catchwords: CHARITIES AND NOT-FOR-PROFITS — Charitable purposes — Other purposes beneficial to the public — Gift for preservation of fauna and flora SUCCESSION — Construction — Charitable gifts — Whether charitable SUCCESSION — Trusts and trustees — Judicial advice, Trustee Act 1925 (NSW), s 63 Legislation Cited: Charitable Trusts Act 1993 (NSW), s 23 Charitable Uses Act 1601 (UK) Perpetuities Act 1984 (NSW) Supreme Court Act 1970 (Cth), s 75 Trustee Act 1925 (NSW), s 63 Cases Cited: Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539, [2010] HCA 42 Attorney-General (NSW) v Donnelly (1958) 98 CLR 538; [1958] HCA 1 Attorney-General (NSW) v Sawtell [1978] 2 NSWLR 200 Campbell v Sherwell [1999] VSC 508 Church of Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 Crawford v Davidson-Crawford [2019] NSWSC 728 Downing v Federal Commissioner of Taxation (1971) 125 CLR 185; [1971] HCA 38 Duggan v White [2018] NSWSC 364 Estate of Aspasia Kandros [2019] NSWSC 757 Harmony - The Dombroski Foundation Ltd v Attorney General in and for the State of New South Wales [2020] NSWSC 1276 Hickey v Attorney General of the State of New South Wales [2021] NSWSC 772 IMF Australia Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231; [2004] FCA 1390 Income Tax Special Purposes Commissioners v Pemsel [1891] AC 531 Morrison-Conway & Anor; Estate of the Late Judith Christine Walsh [2018] NSWSC 685 Re Ingram [1951] VLR 424; [1951] ALR 900 Re Wedgwood [1915] 1 Ch 133 State Trustees Ltd v Attorney-General (Vic) (2013) 301 ALR 798; [2013] VSC 117 Zetting v Müller [2017] NSWSC 659 Texts Cited: Dal Pont, G E, The Law of Charity (3rd ed, 2021, LexisNexis Butterworths) Heydon, JD and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis Butterworths) Category: Principal judgment Parties: Francis Edward Johnson and Jennifer Ann McKeough as trustees for the Estate of the Late Kathleen Mary Johnson (Plaintiffs) David Charles Johnson (First Defendant) Greg Morris Johnson (Second Defendant) Richard Johnson (Third Defendant) Terry Johnson (Fourth Defendant) Danny Johnson (Fifth Defendant) Raymond Johnson (Sixth Defendant) James Johnson (Seventh Defendant) Lin Rosney (Eighth Defendant) Brett Johnson (Ninth Defendant) Davin Johnson (Tenth Defendant) Nicole Doogue (Eleventh Defendant) Nathan Johnson (Twelfth Defendant) Robert John Johnson (Thirteenth Defendant) Mary Kathleen Braaksma (Fourteenth Defendant) Representation: Counsel: MJ Heath with MT McGirr