Perpetual Trustee Company Ltd v University of New South Wales [2023] NSWSC 1061

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Ltd v University of New South Wales [2023] NSWSC 1061 Hearing dates: 16 August 2023 Date of orders: 05 September 2023 Decision date: 05 September 2023 Jurisdiction: Equity Before: McGrath J Decision: (1) Order pursuant to s 70 of the Trustee Act 1925 (NSW) and the inherent jurisdiction of the court that the plaintiff be appointed as trustee of the residue of the estate of the late Richard Bradley (Deceased), with income to be paid in accordance with cll 4 – 9 of the will of the Deceased dated 24 August 1988 (Will). (2) Order that the plaintiff is justified in proceeding on the basis that the income to be paid pursuant to cl 4(a) of the Will is to be paid to the "Trustees of Marist Fathers for the Province of Australia trading as Australian Marist Centre Overseas Aid Fund ABN 87 382 823 140". (3) Declare that the entity identified in cl 4(b) of the Will has ceased to exist such that the plaintiff's power as trustee under cl 5 of the Will is enlivened. (4) Order that the costs of the plaintiff, calculated on the indemnity basis, be paid out of the estate of the Deceased. (5) Order that the costs of the defendant, calculated on the indemnity basis, be paid out of the estate of the Deceased. Catchwords: WILLS AND ESTATES — trusts — charitable gifts — trustee refuses to accept bequest due to direction of testator — misdescription of charity — construction of will — no application of "lapse rule" — testator's intention for trustee to act to give charitable gift to similar organisation with similar charitable purpose Legislation Cited: Charitable Trusts Act 1993 (NSW), s 6(1) Corporations Regulations 2001 (Cth), Sch 8AA Trustee Act 1925 (NSW), s 70 Trustee Companies Act 1964 (NSW), cl 11(1) Cases Cited: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 Application of Browne as executor of the estate of Russell [2021] NSWSC 1340 Application of Paul James Edwards: Estate of the Late John McGregor Edwards [2023] NSWSC 714 Attorney-General v Stephens (1834) 3 My & K 347; (1834) 40 ER 132 Australian Executor Trustees Ltd v Ceduna District Health Services Inc [2006] SASC 286 Cram Foundation v Corbett-Jones & Anor [2006] NSWSC 495 Crowle Foundation v NSW Trustee & Guardian [2010] NSWSC 647 Estate of Lawrence; Hatzantonis v Lawrence [2003] NSWSC 914 Estate of the late Morris Zion Forbes v State of New South Wales & Ors [2010] NSWSC 1439 June Shirley Overall v Family Voice Australia Incorporated [2014] NSWSC 736 Mallott v Wilson [1903] 2 Ch 494 Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187 Re Estate Miletic; Strbik v Strbik [2023] NSWSC 371 Re Servers of the Blind League [1960] 1 WLR 564 Re Tyrie, deceased (No 1) [1972] VR 168 Royal North Shore Hospital of Sydney v Attorney-General (NSW) (1938) 60 CLR 396 Sidle v Queensland Trustees Ltd (1915) 20 CLR 557; [1915] HCA 48 The Public Trustee as Administrator of the Estate of Herbert Sebastian Hodge (Dec) v Cerebral Palsy Association of Western Australia Ltd & Anor [2004] WASC 36 Towns v Wentworth (1858) 14 ER 794 Texts Cited: Heydon and Leeming, Jacobs' Law of Trusts in Australia (8th ed, LexisNexis, 2016) Category: Principal judgment Parties: Perpetual Trustee Company Ltd (ACN 000 001 007) (Plaintiff) University of New South Wales (ACN 57 195 873 179) (Defendant) Representation: Counsel: S Chapple with D Yazdani (Plaintiff) H Morrison with A T Green (Defendant)