Green v Attorney General of the State of New South Wales [2023] NSWSC 1229

Supreme Court New South Wales

Medium Neutral Citation: Green v Attorney General of the State of New South Wales [2023] NSWSC 1229 Hearing dates: 3 October 2023 Date of orders: 3 October 2023 Decision date: 03 October 2023 Jurisdiction: Equity Before: Meek J Decision: Orders made, inter alia, enabling the property of the charitable trust to be applied cy-près and administered in accordance with trustees' proposed scheme Catchwords: CHARITIES AND NOT-FOR-PROFITS — Charitable gifts and trusts — cy-près scheme — In 1981, a charitable unincorporated association, "the Our Lady of Snows Society" (OLOSS), was formed by two now deceased siblings — Various administrative issues emerged over time and other issues became manifest consequent upon the siblings' deaths in respectively February 2009 and late March 2016 — The son and executor of last surviving trustee of the trust applied to the Court for a first tranche of relief relating to OLOSS addressing identification of trust purposes and also financial and administrative issues — Various orders were made including a declaration as to the OLOSS' trust purpose and new trustees appointed (Hickey v Attorney General of the State of New South Wales [2021] NSWSC 772) — Following investigations and enquiries the trustees shortlisted a number of charitable organisations which are regarded by the trustees as having purposes and operations most like that of the OLOSS trust — Following further communications with the shortlisted charities, a single charity, the Rev. Bill Crews Foundation Ltd (the Foundation), was proposed to be the recipient in accordance with a scheme the trustees (with the consent of the Foundation) sought to have approved by the Court CHARITABLE GIFTS AND TRUSTS — cy-près scheme — Distinction between administrative schemes and cy-près schemes — Reference to widening of the cy‑près jurisdiction in New South Wales brought about by the enactment of s 9 Charitable Trusts Act 1993 (NSW) (CTA) — General observations regarding the effect of ss 9 and 10 CTA including contrast of general law and statutory cy-près provisions — Approach to construction of s 9 CTA and identification of the "spirit of the trust" CHARITABLE GIFTS AND TRUSTS — cy-près scheme — Discussion of legal provisions bearing upon duration of trusts and expenditure of permanent endowment capital CHARITABLE GIFTS AND TRUSTS — Considerations regarding "spirit of the trust" in relation to services provided, geographic focus and choices as between proposals which would exhaust the trust capital and a proposal permitting the trust (real estate) property to be kept in specie and having an enduring operation Legislation Cited: Charitable Trusts Act 1993 (NSW) Charities Act 1960 (UK) Charities Act 2006 (UK) Charities Act 2011 (UK) Charities Act 2022 (UK) Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Attorney General for New South Wales v Fulham [2002] NSWSC 629 Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1940) 63 CLR 209; [1940] HCA 12 Corish v Attorney General's Department of NSW [2006] NSWSC 1219 Eurella Community Services Inc v Attorney General for the State of NSW [2010] NSWSC 566 Forrest v Attorney-General [1986] VR 187 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust v Bishop Irinej Dobrijevic (2017) 94 NSWLR 340; [2017] NSWCA 28 Hickey v Attorney General of the State of New South Wales [2021] NSWSC 772 Hunter Region SLSA Helicopter Rescue Service Ltd v Attorney-General (NSW) (2013) 9 ASTLR 308; [2013] NSWSC 1749 In re Watt; Hicks v Hill [1932] 2 Ch 243 In re Williams, deceased; Bendigo and Northern District Base Hospital of Bendigo v Attorney-General [1955] VLR 65 In re Withall; Withall v Cobb [1932] 2 Ch 236 Northern NSW Helicopter Rescue Service Limited v Attorney General of New South Wales [2023] NSWSC 515 Northern Sydney and Central Coast Area Health Service v The Attorney General for New South Wales [2007] NSWSC 881 Permanent Trustee Company Ltd v Attorney General (Supreme Court (NSW), Young J, 12 December 1994, unrep) Perpetual Trustee Company Ltd v Attorney General for the State of New South Wales (The Will of the Hon George Nesbitt) [2018] NSWSC 1456 Re Permanent Trustee Company Ltd v Attorney General; Burns Estate (No 2) (Supreme Court (NSW), Young J, 1 March 1995, unrep) RSL Veterans' Retirement Villages Ltd v NSW Minister for Lands [2006] NSWSC 1161 Ubiparipovic v Vucicevic [2018] NSWSC 1583 Varsani v Jesani; Jesani v Varsani [1999] Ch 219 Texts Cited: Dal Pont, GE, Law of Charity (3rd ed, 2021, LexisNexis) Henderson, William, Jonathon Fowles and Julian Smith, Tudor on Charities (10th ed, 2015, Sweet & Maxwell) Heydon, JD and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) Parliamentary Debates (Hansard) Picarda KC, Hubert, The Law and Practice Relating to Charities (4th ed, 2010, Bloomsbury Professional) Category: Principal judgment Parties: Mark Francis Green (First Plaintiff) Kim Probert (Second Plaintiff) Attorney General for the State of New South Wales (Defendant) Representation: Counsel: P Russell (Plaintiffs) A Hochroth (Defendant)